American Political Science Review, Vol. 55, No. 4 (Dec., 1961)

THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION

JOHN P. ROCHE Brandeis University

Over the last century and a half, the work of disembodied conservatives or Agents of His- the Constitutional Convention and the motives tory-and as recent research into the nature of of the Founding Fathers have been analyzed American politics in the 1780s confirms,1 they under a number of different ideological aus- were committed (perhaps willy-nilly) to work- pices. To one generation of historians, the hand ing within the democratic framework, within a of God was moving in the assembly; under a universe of public approval. Charles Beard and later dispensation, the dialectic (at various the filiopietists to the contrary notwithstand- levels of philosophical sophistication) replaced ing, the Philadelphia Convention was not a the Deity: "relationships of production" moved College of Cardinals or a council of Platonic into the niche previously reserved for Love of guardians working within a manipulative, pre- Country. Thus in counterpoint to the Zeit- democratic framework; it was a nationalist geist, the Framers have undergone miraculous reform caucus which had to operate with great metamorphoses: at one time acclaimed as delicacy and skill in a political cosmos full of liberals and bold social engineers, today they enemies to achieve the one definitive goal- appear in the guise of sound Burkean con- popular approbation. servatives, men who in our time would sub- Perhaps the time has come, to borrow scribe to Fortune, look to Walter Lippmann for Walton Hamilton's fine phrase, to raise the political theory, and chuckle patronizingly at Framers from immortality to mortality, to give the antics of Barry Goldwater. The implicit them credit for their magnificent demonstra- assumption is that if James Madison were tion of the art of democratic politics. The point among us, he would be President of the Ford must be reemphasized; they made history and Foundation, while Alexander Hamilton would did it within the limits of consensus. There was chair the Committee for Economic Develop- nothing inevitable about the future in 1787; ment. the Zeitgeist, that fine Hegelian technique of The "Fathers" have thus been admitted to begging causal questions, could only be dis- our best circles; the revolutionary ferocity cerned in retrospect. What they did was to which confiscated all Tory property in reach hammer out a pragmatic compromise which and populated New Brunswick with outlaws would both bolster the "National interest" has been converted by the "Miltown School" and be acceptable to the people. What inspira- of American historians into a benign dedication tion they got came from their collective experi- to "consensus" and "prescriptive rights." The ence as professional politicians in a democratic Daughters of the American Revolution have, society. As John Dickinson put it to his fellow through the ministrations of Professors Boor- delegates on August 13, "Experience must be stin, Hartz, and Rossiter, at last found ances- our guide. Reason may mislead us." tors worthy of their descendants. It is not my In this context, let us examine the problems purpose here to argue that the "Fathers" were, they confronted and the solutions they evolved. in fact, radical revolutionaries; that proposition The Convention has been described pictur- has been brilliantly demonstrated by Robert R. esquely as a counter-revolutionary junta and Palmer in his Age of the Democratic Revolution. My concern is with the further position that I The view that the right to vote in the states not only were they revolutionaries, but also was severely circumscribed by property qualifica- they were democrats. Indeed, in my view, there tions has been thoroughly discredited in recent is one fundamental truth about the Founding years. See Chilton Williamson, American Suffrage Fathers that every generation of Zeitgeisters from Property to Democracy, 1760-1860 (Prince- has done its best to obscure: they were first and ton, 1960). The contemporary position is that foremost superb democratic politicians. I sus- John Dickinson actually knew what he was talk- pect that in a contemporary setting, James ing about when he argued that there would be Madison would be Speaker of the House of little opposition to vesting the right of suffrage in Representatives and Hamilton would be the freeholders since "The great mass of our Citizens eminence rise dominating (pace Theodore is composed at this time of freeholders, and will Sorenson or Sherman Adams) the Executive be pleased with it." Max Farrand, Records of the Office of the President. They were, with their Federal Convention, Vol. 2, p. 202 (New Haven, colleagues, political men--not metaphysicians, 1911). (Henceforth cited as Farrand.) 799 800 THE AMERICAN POLITICALT SCIENCE REVIEW the Constitution as a coup d'etat,2 but this has take the following steps: (1) agree to send been accomplished by withdrawing the whole delegates to the Philadelphia Convention; (2) history of the movement for constitutional provide maintenance for these delegates (these reform from its true context. No doubt the were distinct stages: New Hampshire was early goals of the constitutional elite were "subver- in naming delegates, but did not provide for sive" to the existing political order, but it is their maintenance until July); (3) set up the overlooked that their subversion could only special ad hoc convention to decide on ratifica- have succeeded if the people of the United tion; and (4) conce(le to the decision of the ad States endorsed it by regularized procedures. hoc convention that New York should par- Indubitably they were "plotting" to establish a ticipate. New York admittedly was a tricky much stronger central government than existed state, with a strong interest in a status quo under the Articles, but only in the sense in which permitted her to exploit New Jersey and which one could argue equally well that John F. Connecticut, but the same legal hurdles existed Kennedy was, from 1956 to 1960, "plotting" to in every state. And at the risk of becoming become President. In short, on the fundamental boring, it must be reiterated that the only procedural level, the Constitutionalists had to weapon in the Constitutionalist arsenal was an work according to the prevailing rules of the effective mobilization of public opinion. game. Whether they liked it or not is a topic The group which undertook this struggle was for spiritualists-and is irrelevant: one may be an interesting amalgam of a few dedicated quite certain that had Washington agreed to nationalists with the self-interested spokesmen play the De Gaulle (as the Cincinnati once of various parochial bailiwicks. The Georgians, urged), Hamilton would willingly have held his for example, wanted a strong central authority horse, but such fertile speculation in no way to provide military protection for their huge, alters the actual context in which events took underpopulated state against the Creek Con- place. federacy; Jerseymen and Connecticuters wanted to escape from economic bondage to I New York; the Virginians hoped to establish a When the Constitutionalists went forth to system which would give that great state its subvert the Confederation, they utilized the rightful place in the councils of the republic. mechanisms of political legitimacy. And the The dominant figures in the politics of these roadblocks which confronted them were for- states therefore cooperated in the call for the midable. At the same time, they were endowed Convention.' In other states, the thrust to- with certain potent political assets. The history wards national reform was taken up by opposi- of the United States from 1786 to 1790 was tion groups who added the "national interest" largely one of a masterful employment of politi- to their weapons system; in Pennsylvania, for cal expertise by the Constitutionalists as instance, the group fighting to revise the Con- against bumbling, erratic behavior by the stitution of 1776 came out four-square behind opponents of reform. Effectively, the Constitu- the Constitutionalists, and in New York, Ham- tionalists had to induce the states, by demo- ilton and the Schuyler ambiance took the same cratic techniques of coercion, to emasculate tack against George Clinton.4 There was, of themselves. To be specific, if New York had course, a large element of personality in the refused to join the new Union, the project was affair: there is reason to suspect that Patrick doomed; yet before New York was safely in, Henry's opposition to the Convention and the the reluctant state legislature had sua sponte to 3 A basic volume, which, like other works by 2 The classic statement of the coup d'etat theory Warren, provides evidence with which one can Charles is, of course, Charles A. Beard, An Economic evaluate the author's own opinions, is Interpretation of the Constitution of the United Warren, The Making of the Constitution (Boston, forces States (New York, 1913), and this theme was 1928). The best brief summary of the Chap- echoed by Vernon L. Parrington, Merrill Jensen behind the movement for centralization is and others in "populist" historiographical tradi- ter 1 of Warren (as it will be cited hereafter). Brunhouse, tion. For a sharp critique of this thesis see 4On Pennsylvania see Robert L. Robert E. Brown, Charles Beard and the Constitu- Counter-Revolution in Pennsylvania (Harrisburg, Wilson tion (Princeton, 1956). See also Forrest Mc- 1942) and Charles P. Smith, James which Donald, We the People (Chicago, 1958); the (Chapel Hill, 1956), cel. 15; for New York, Pennsylvania trailblazing work in this genre was Douglas needs the same sort of microanalysis Spauld- Adair, "The Tenth Federalist Revisited," William has received, the best study is E. Wilder 1783-1789 and Mary Quarterly, Third Series, Vol. VIII ing, New York in the Critical Period, (1951), pp. 48-67. (New York, 1932). THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 801

Constitution was founded on his conviction state legislator was probably about as con- that Jefferson was behind both, and a close cerned with foreign policy then as he is today, study of local politics elsewhere would surely but Congressmen were constantly forced to reveal that others supported the Constitution take the broad view of American prestige, were for the simple (and politically quite sufficient) compelled to listen to the reports of Secretary reason that the "wrong" people were against it. John Jay and to the dispatches and pleas from To say this is not to suggest that the Consti- their frustrated envoys in Britain, France and tution rested on a foundation of impure or base Spain.8 From considerations such as these, a motives. It is rather to argue that in politics "Continental" ideology developed which seems there are no immaculate conceptions, and that to have demanded a revision of our domestic in the drive for a stronger general government, institutions primarily on the ground that only motives of all sorts played a part. Few men in by invigorating our general government could the history of mankind have espoused a view we assume our rightful place in the interna- of the "common good" or "public interest" tional arena. Indeed, an argument with great that militated against their private status; even force-particularly since Washington was its Plato with all his reverence for disembodied incarnation-urged that our very survival in reason managed to put philosophers on top of the Hobbesian jungle of world politics de- the pile. Thus it is not surprising that a number pended upon a reordering and strengthening of diversified private interests joined to push ,of our national sovereignty.9 the nationalist public interest; what would Note that I am not endorsing the "Critical have been surprising was the absence of such a Period" thesis; on the contrary, Merrill Jensen pragmatic united front. And the fact remains seems to me quite sound in his view that for that, however motivated, these men did dem- most Americans, engaged as they were in self- onstrate a willingness to compromise their sustaining agriculture, the "Critical Period" parochial interests in behalf of an ideal which was not particularly critical.'0 In fact, the great took shape before their eyes and under their achievement of the Constitutionalists was their ministrations. ultimate success in convincing the elected As Stanley Elkins and Eric MeKitriek have representatives of a majority of the white male suggested in a perceptive essay,5 what distin- population that change was imperative. A guished the leaders of the Constitutionalist small group of political leaders with a Conti- caucus from their enemies was a "Continental" nental vision and essentially a consciousness of approach to political, economic and military the United States' international impotence, issues. To the extent that they shared an insti- provided the matrix of the movement. To their tutional base of operations, it was the Conti- standard other leaders rallied with their own nental Congress (thirty-nine of the delegates to parallel ambitions. Their great assets were (1) the Federal Convention had served in Con- the presence in their caucus of the one authentic gress6), and this was hardly a locale which in- American "father figure," George Washington, spired respect for the state governments. whose prestige was enormous;" (2) the energy Robert de Jouvenal observed French politics and talent of their leadership (in which one half a century ago and noted that a revolu- must include the towering intellectuals of the tionary Deputy had more in common with a non-revolutionary Deputy than he had with a 8 See Frank Monachan, John Jay (New York, revolutionary non-Deputy;7 similarly one can 1935), ch. 13. surmise that membership in the Congress under 9 " [T]he situation of the general government, if the Articles of Confederation worked to estab- it can be called a government, is shaken to its lish a continental frame of reference, that a, foundation, and liable to be overturned by every Congressman from Pennsylvania and one from blast. In a word, it is at an end; and, unless a South Carolina would share a universe of dis- remedy is soon applied, anarchy and confusion course which provided them with a conceptual will inevitably ensue." Washington to Jefferson, common denominator vis a vis their respective May 30, 1787, Farrand, III, 31. See also Irving state legislatures. This was particularly true Brant, James Madison, The Nationalist (New with respect to external affairs: the average York, 1948), ch. 25. 10 Merrill Jensen, The New Nation (New York, 5 Stanley Elkins and Eric McKitrick, "The 1950). Interestingly enough, Prof. Jensen virtu- Founding Fathers: Young Mcii of the Revolu- ually ignores international relations in his lauda- tion," Political Science Quarterly, Vol. 76, p. 181 tory treatment of the government under the (1961). Articles of Confederation. 6 Warren, p. 55. 11 The story of James Madison's cultivation of 7 In La Republique des Catitaraedes (Pavis, 1914). Waslhington is tolk by Erant, op. cit., pp. 394--97. 802 THE AMERICAN POLITICAL SCIENCE REVIEW

time, John Adams and Thomas Jefferson, discuss and recommend needed reforms. If they despite their absence abroad), and their com- took a hard line at the first stage, they were put munications "network," which was far superior in the position of glorifying the status quo and to anything on the opposition side ;12 (3) the of denying the need for any changes. Moreover, preemptive skill which made "their" issue The the Constitutionalists could go to the people Issue and kept the locally oriented opposition with a persuasive argument for "fair play"- permanently on the defensive; and (4) the "How can you condemn reform before you subjective consideration that these men were know precisely what is involved?" Since the spokesmen of a new and compelling credo: state legislatures obviously would have the American nationalism, that ill-defined but final say on any proposals that might emerge nonetheless potent sense of collective purpose from the Convention, the Constitutionalists that emerged from the American Revolu- were merely reasonable men asking for a chance. tion. Besides, since they did not make any concrete Despite great institutional handicaps, the proposals at that stage, they were in a position Constitutionalists managed in the mid-1780s to capitalize on every sort of generalized dis- to mount an offensive which gained momentum content with the Confederation. as years went by. Their greatest problem was Perhaps because of their poor intelligence lethargy, and paradoxically, the number of system, perhaps because of over-confidence barriers in their path may have proved an generated by the failure of all previous efforts advantage in the long run. Beginning with the to alter the Articles,'4 the opposition awoke initial battle to get the Constitutional Conven- too late to the dangers that confronted them in tion called and delegates appointed, they could 1787. Not only did the Constitutionalists never relax, never let up the pressure. In prac- manage to get every state but Rhode Island tical terms, this meant that the local "organiza- (where politics was enlivened by a party system tions" created by the Constitutionalists were reminiscent of the "Blues" and the "Greens" perpetually in movement building up their in the Byzantine Empire)15 to appoint delegates cadres for the next fight. (The word organiza- to Philadelphia, but when the results were in, it tion has to be used with great caution: a politi- appeared that they dominated the delegations. cal organization in the United States-as in Given the apathy of the opposition, this was a contemporary England"3-generally consisted natural phenomenon: in an ideologically non- of a magnate and his following, or a coalition of polarized political atmosphere those who get magnates. This did not necessarily mean that appointed to a special committee are likely to it was "undemocratic" or "aristocratic," in the be the men who supported the movement for Aristotelian sense of the word: while a few its creation. Even George Clinton, who seems magnates such as the Livingstons could draft to have been the first opposition leader to their followings, most exercised their leadership awake to the possibility of trouble, could not without coercion on the basis of popular en- prevent the New York legislature from ap- dorsement. The absence of organized opposi- pointing Alexander Hamilton-though he did tion did not imply the impossibility of competi- have the foresight to send two of his henchmen tion any more than low public participation in to dominate the delegation. Incidentally, much elections necessarily indicated an undemo- has been made of the fact that the delegates to cratic suffrage.) Philadelphia were not elected by the people; The Constitutionalists got the jump on the some have adduced this fact as evidence of the "opposition" (a collective noun: oppositions "undemocratic" character of the gathering. would be more correct) at the outset with the demand for a Convention. Their opponents 14 The Annapolis Convention, called for the were caught in an old political trap: they were previous year, turned into a shambles: only five not being asked to approve any specific program states sent commissioners, only three states were of reform, but only to endorse a meeting to legally represented, and the instructions to dele- gates named varied quite widely from state to 12 The "message center" being the Congress; state. Clinton and others of his persuasion may nineteen members of Congress were simultane- have thought this disaster would put an end to ously delegates to the Convention. One gets a the drive for reform. See Mitchell, op. cit., pp. sense of this coordination of effort from Broadus 362-67; Brant, op. cit., pp. 375-87. Mitchell, Alexander Hamilton, Youth to Maturity 15 See Hamilton M. Bishop, Why Rhode Island (New York, 1957), ch. 22. Opposed the Federal Constitution (Providence, 13 See Sir Lewis Namier, The Structure of 1950) for a careful analysis of the labyrinthine Politics at the Accession of George III, 2d ed. (New political course of Rhode Island. For background York, 1957); England in the Age of the American see David S. Lovejoy, Rhode Island Politics and Revolution (London, 1930). the American Revolution (Providence, 1958). THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 803

But put in the context of the time, this argu- state approval for any amendment) was thor- ment is wholly specious: the central govern- oughly subversive."7 ment under the Articles was considered a Standard treatments of the Convention creature of the component states and in all the divide the delegates into "nationalists" and states but Rhode Island, Connecticut and New "states'-righters" with various improvised Hampshire, members of the national Congress shadings ("moderate nationalists," etc.), but were chosen by the state legislatures. This was these are a posterior categories which obfuscate not a consequence of elitism or fear of the mob; more than they clarify. What is striking to one it was a logical extension of states'-rights doc- who analyzes the Convention as a case-study trine to guarantee that the national institution in democratic politics is the lack of clear-cut did not end-run the state legislatures and make ideological divisions in the Convention. Indeed direct contact with the people."6 I submit that the evidence-Madison's Notes, the correspondence of the delegates, and de- II bates on ratification indicates that this was a With delegations safely named, the focus remarkably homogeneous body on the ideo- shifted to Philadelphia. While waiting for a logical level. Yates and Lansing, Clinton's two quorum to assemble, James Madison got busy chaperones for Hamilton, left in disgust on and drafted the so-called Randolph or Virginia July 10. (Is there anything more tedious than Plan with the aid of the Virginia delegation. sitting through endless disputes on matters one This was a political master-stroke. Its conse- deems fundamentally misconceived? It takes quence was that once business got underway, an iron will to spend a hot summer as an ideo- the framework of discussion was established on logical agent provocateur.) Luther Martin, Madison's terms. There was no interminable Maryland's bibulous narcissist, left on Sep- argument over agenda; instead the delegates tember 4 in a huff when he discovered that took the Virginia Resolutions-"just for pur- others did not share his self-esteem; others poses of discussion"-as their point of depar- went home for personal reasons. But the hard ture. And along with Madison's proposals, core of delegates accepted a grinding regimen many of which were buried in the course of the throughout the attrition of a Philadelphia sum- summer, went his major premise: a new start on mer precisely because they shared the Constitu- a Constitution rather than piecemeal amend- tionalist goal. ment. This was not necessarily revolutionary- Basic differences of opinion emerged, of a little exegesis could demonstrate that a new course, but these were not ideological; they Constitution might be formulated as "amend- were structural. If the so-called "states'-rights" ments" to the Articles of Confederation-but group had not accepted the fundamental pur- Madison's proposal that this "lump sum" poses of the Convention, they could simply amendment go into effect after approval by have pulled out and by doing so have aborted nine states (the Articles required unanimous the whole enterprise. Instead of bolting, they returned day after day to argue and to com- 16 The terms "radical" and "conservative" promise. An interesting symbol of this basic have been bandied about a good deal in connec- homogeneity was the initial agreement on tion with the Constitution. This usage is nonsense secrecy: these professional politicians did not if it is employed to distinguish between two eco- want to become prisoners of publicity; they nomic "classes"-e.g., radical debtors versus wanted to retain that freedom of maneuver conservative creditors, radical farmers versus which is only possible when men are not forced conservative capitalists, etc.-because there was to take public stands in the preliminary stages no polarization along this line of division; the of negotiation.'8 There was no legal means of same types of people turned up on both sides. binding the tongues of the delegates: at any And many were hard to place in these terms: does one treat Robert Morris as a debtor or a creditor? 17 Yet, there was little objection to this crucial or James Wilson? See Brown, op. cit., passim. The modification from any quarter-there almost one line of division that holds up is between those seems to have been a gentlemen's agreement that deeply attached to states'-rights and those who Rhode Island's liberum veto had to be destroyed. felt that the Confederation was bankrupt. Thus, 18 See Mason's letter to his son, May 27, 1787, curiously, some of the most narrow-minded, in which he endorsed secrecy as "a proper pre- parochial spokesmen of the time have earned the caution to prevent mistakes and misrepresenta- designation "radical" while those most willing to tion until the business shall have been completed, experiment and alter the status quo have been when the whole may have a very different com- dubbed "conservative"! See Cecelia Kenyon, plexion from that in which the several crude and "Men of Little Faith," William and Mary Quar- indigested parts might in their first shape appear terly, Vol. 12, p. 3 (1955). if submitted to the public eye." Farrand, III, 28. 804 THE AMERICAN POLITICAL SCIENCE REVIEW stage in the game a delegate with basic prin- and have disregarded Madison's dogged inch- cipled objections to the emerging project could by-inch retreat from the bastions of centraliza- have taken the stump (as Luther Martin did tion. The Virginia Plan envisioned a unitary after his exit) and denounced the convention national government effectively freed from and to the skies. Yet Madison did not even inform dominant over the states. The lower house of Thornas Jefferson in Paris of the course of the the national legislature was to be elected deliberations's and available correspondence directly by the people of the states with mem- indicates that the delegates generally observed bership proportional to population. The upper the injunction. Secrecy is certainly unchar- house was to be selected by the lower arid the acteristic of any assembly marked by strong two chambers would elect the executive arid ideological polaritation. This was noted at the choose the judges. The national govetilmeflit time: the New York Daily AdrvertiSer,August1 4) would be thus cut orM.pletely,loose from the 1787, commented that the " ... profound states.23 secrecy hitherto observed by the Convention The structure of the general government was we consdlerj a happy omen, as it demonstrates freed from state control in a truly radical that the spirit of party ontany great and essen- fashion, but the scope of the authority of the tial point cannot have arisen to any height."20 national sovereign as Madison initially formu- Cofnmentotors on the Constitution who have lated it was breathtaking-it was a formula- read The #ederalistin lieu of reading the actual tion worthy of the Sage of Malmesbury him- 'debates have credited the Fathers with the self. The national legislature was to be em- inventionn of a sublime concept called "Fed- powered to disallow the acts of state legisla- eralism."21 Unfortunately The Federalist is tures,24and the central government was vested, probative evidence for only one proposition: in addition to the powers of the nation under that Hamilton and Madison were inspired the Articles of Confederation, with plenary propagandists with a genius for retrospective authority wherever " . . . the separate States symmetry. Federalism, as the theory is gen- are incompetent or in which the harmony of erally defined, was an improvisation which was the United States may be interrupted by the later promoted into a political theory. Experts on "federalism" should take to heart the ad- irreconcilable with the idea of an aggregate vice of David Hume, who warned in his Of the sovereignty," Madison to Randolph, cited in Rise and Progress of the Arts and Sciences that Brant, op. cit., p. 416. ", . . there is no subject in which we must 23 The Randolph Plan was presented on May proceed with more caution than in [history], 29, see Farrand, I, 18-23; the state legislatures lest we assign causes which never existed and retained only the power to nominate candidates reduce what is merely contingent to stable and for the upper chamber. Madison's view of the universal principles." In any event, the final appropriate position of the states emerged even balance in the Constitution between the states more strikingly in Yates' record of his speech on and the nation must have come as a great dis- June 29: "Some contend that states are sovereign appointment to Madison, while Hamilton's when in fact they are only political societies. unitary views are too well known to need There is a gradation of power in all societies, elucidation. from the lowest corporation to the highest sov- it is indeed astonishing how those who have ereign. The states never possessed the essential glibly designated James MIadison the "father" rights of sovereignty .... The states, at present, of Federalism have overlooked the solid body of are only great corporations, having the power of fact which indicates that he shared Hamilton's making by-laws, and these are effectual only if quest for a unitary central government. To be they are not contradictory to the general con- specific, they have avoided examining the federation. The states ought to be placed under clear import of the Madison-Virginia Plan,22 the control of the general government-at least as much so as they formerly were under the king 19 See Madison to Jefferson, June 6, 1787, and British parliament." Farrand, I, 471. Forty- Farrand, III, 35. six years later, after Yates' "Notes" had been 20 Cited in Warren, p. 138. published, Madison tried to explain this state- 21 See, e.g., Gottfried Dietze, The Federalist, A nient away as a misinterpretation: he did not Classic on Federalism and Free Government (Balti- Hfatly deny the authenlt-icity of Yates' record, but more, 1960); Richard Hofstadter, The Amterican attempted a defense that was half justification Political Tradition (New York, 1948); and John P. atud half evasion. Madlison to W. C. Rives 0i. Roche, "American Liberty," in M. Konvitz and 21, l833. Farrand, III, 521-24. C. Rossiter, eds., Aspects of Liberty (Ithaca, 1958). 24 Resolution 6 gave the National Legislature the Council of 22 "I hold it for a fundamental point, that an this power subject to review by individual independence of the states is utterly Revision proposed in Resolution 8. THE FOUNDING FATHERS: A REFORM CAIJCUS IN ACTION 805

exercise of individual legislation."25 Finally, states dug in their heels and demanded time for just to lock the door against state intrusion, the a consideration of alternatives. One gets ,l national Congress was to be given the power to graphic sense of the inner politics from John use military force on recalcitrant states.26 This Dickinson's reproach to Madison: "You see the was Madison's "model" of an ideal national consequences of pushing things too far. Some government, though it later received little of the members from the small States wish for publicity in The Federalist. two branches in the General Legislature and The interesting thing was the reaction of the are friends to a good National Government; but Convention to this militant program for a we would sooner submit to a foreign power strong autonomous central government. Some than ... be deprived of an equality of suffrage delegates were startled, some obviously leery of in both branches of the Legislature, and thereby so comprehensive a project of reform,27 but be thrown under the domination of the large nobody set off any fireworks and nobody States."29 walked out. Moreover, in the two weeks that The bare outline of the Journal entry for followed, the Virginia Plan received substan- Tuesday, June 14, is suggestive to anyone with tial endorsement en principe; the initial temper extensive experience in deliberative bodies. of the gathering can be deduced from the ap- "It was moved by Mr. Patterson [sic, Pater- proval "without debate or dissent," on May 31, son's name was one of those consistently mis- of the Sixth Resolution which granted Congress spelled by Madison and everybody else] sec- the authority to disallow state legislation onded by Mr. Randolph that the further con- " . ..contravening in its opinion the Articles sideration of the report from the Committee of of Union." Indeed, an amendment was included the whole House [endorsing the Virginia Plan] to bar states from contravening national be postponed til tomorrow. and before the treaties.28 question for postponement was taken. It was The Virginia Plan may therefore be con- moved by Mr. Randolph seconded by Mr. sidered, in ideological terms, as the delegates' Patterson that the House adjourn."30 The Utopia, but as the discussions continued and House adjourned by obvious prearrangement became more specific, many of those present of the two principals: since the preceding began to have second thoughts. After all, they Saturday when Brearley and Paterson of New were not residents of Utopia or guardians in Jersey had announced their fundamental dis- Plato's Republic who could simply impose a content with the representational features of philosophical ideal on subordinate strata of the the Virginia Plan, the informal pressure had population. They were practical politicians in a certainly been building up to slow down the democratic society, and no matter what their streainroller. Doubtless there were extended private dreams might be, they had to take arguments at the Indian Queen between Madi- home an acceptable package and defend it- son and Paterson, the latter insisting that and their own political futures--against pre- events were moving rapidly towards a prob- dictable attack. On June 14 the breaking point ably disastrous conclusion, towards a political between dream and reality took place. Ap- suicide pact. Now the process of accommoda- parently realizing that under the Virginia Plan, tion was put into action smoothly-and Massachusetts, Virginia and Pennsylvania wisely, given the character and strength of the could virtually dominate the national govern- doubters. Madison had the votes, but this was ment-and probably appreciating that to sell one of those situations where the enforcement this program to "the folks back home" would of mechanical majoritarianism could easily be impossible-the delegates from the small have destroyed the objectives of the majority: the Constitutionalists were in quest of a quali- 25 Resolution 6. tative as well as a quantitative consensus. This 26 Ibid. was hardly from deference to local Quaker 27 See the discussions on May 30 and 31. "Mr. custom; it was a political imperative if they Charles Pinkney wished to know of Mr. Randolph were to attain ratification. whether he meant to abolish the State Governts. altogether . . . Mr. Butler said he had not made III Up his mind on the subject and was open to the According to the standard script, at this light which discussion might throw on it ... point the "states'-rights" group intervened in Genl. Pinkney expressed a doubt ... Mr. Gerry seemed to entertain the same doubt." Farrand, I, 29 Ibid., p. 242. Delaware's delegates had been 33-34. There were no denunciations-though it instructed by their general assembly to maintain should perhaps be added that Luther Martin had in any new system the voting equality of the not yet arrived. states. Farrand, III, 574. 28 Farrand, I, 54. (Italics added.) 30 Ibid., p. 240. 806 THE AMERICAN POLITICAL SCIENCE REVIEW force behind the New Jersey Plan, which has for attaining the substantive objectives of the been characteristically portrayed as a reversion Virginia Plan by a sound political route, i.e., to the status quo under the Articles of Con- pouring the new wine in the old bottles. With a federation with but minor modifications. A shrewd eye, Paterson queried: careful examination of the evidence indicates Will the Operation and Force of the [central] that only in a marginal sense is this an accurate Govt. depend upon the mode of Representn.-No description. It is true that the New Jersey Plan -it will depend upon the Quantum of Power put the states back into the institutional pic- lodged in the leg. ex. and judy. Departments- ture, but one could argue that to do so was a Give [the existing] Congress the same Powers recognition of political reality rather than an that you intend to give the two Branches, [under affirmation of states'-rights. A serious case can the Virginia Plan] and I apprehend they will act be made that the advocates of the New Jersey with as much Propriety and more Energy . . 35 Plan, far from being ideological addicts of states'-rights, intended to substitute for the In other words, the advocates of the New Virginia Plan a system which would both retain Jersey Plan concentrated their fire on what they strong national power and have a chance of held to be the political liabilities of the Virginia adoption in the states. The leading spokesman Plan-which were matters of institutional for the project asserted quite clearly that his structure-rather than on the proposed scope views were based more on counsels of expe- of national authority. Indeed, the Supremacy diency than on principle; said Paterson on Clause of the Constitution first saw the light of June 16: "I came here not to speak my own day in Paterson's Sixth Resolution; the New sentiments, but the sentiments of those who Jersey Plan contemplated the use of military sent me. Our object is not such a Governmt. as force to secure compliance with national law; may be best in itself, but such a one as our and finally Paterson made clear his view that Constituents have authorized us to prepare, under either the Virginia or the New Jersey and as they will approve."'" This is Madison's systems, the general government would " ... version; in Yates' transcription, there is a act on individuals and not on states."36 From crucial sentence following the remarks above: the states'-rights viewpoint, this was heresy: "I believe that a little practical virtue is to be the fundament of that doctrine was the proposi- preferred to the finest theoretical principles, tion that any central government had as its which cannot be carried into effect."32 In his constituents the states, not the people, and preliminary speech on June 9, Paterson had could only reach the people through the agency stated " . . . to the public mind we must ac- of the state government. commodate ourselves,"33 and in his notes for Paterson then reopened the agenda of the this and his later effort as well, the emphasis is Convention, but he did so within a distinctly the same. The structure of government under nationalist framework. Paterson's position was the Articles should be retained: one of favoring a strong central government in principle, but opposing one which in fact put 2. Because it accords with the Sentiments of the big states in the saddle. (The Virginia Plan, the People for all its abstract merits, did very well by [Proof:] 1. Coms. [Commissions from state Virginia.) As evidence for this speculation, legislatures defining the juris- there is a curious and intriguing proposal among diction of the delegates] Paterson's preliminary drafts of the New Jersey 2. News-papers-Political Barom- Plan: eter. Jersey never would have Whereas it is necessary in Order to form the sent Delegates under the first People of the U. S. of America in to a Nation, that [Virginia] Plan- the States should be consolidated, by which Not here to sport Opinions of my own. Wt. means all the Citizens thereof will become equally [What] can be done. A little practicable intitled to and will equally participate in the same Virtue preferrable to Theory.34 Privileges and Rights . . . it is therefore resolved, that all the Lands contained within the Limits of This was a defense of political acumen, not of each state individually, and of the U. S. generally states'-rights. In fact, Paterson's notes of his speech can easily be construed as an argument 35 Ibid., pp. 275-76. 36 "But it is said that this national government 31 Ibid., p. 250. is to act on individuals and not on states; and 32 Ibid., p. 258. cannot a federal government be so framed as to 33 Ibid., p. 178. operate in the same way? It surely may." Ibid., 34 Ibid., p. 274. pp. 182-83; also ibid. at p. 276. THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 807 be considered as constituting one Body or Mass, Alexander Hamilton, previously mute, rose and be divided into thirteen or more integral and delivered a six-hour oration.41 It was a parts. remarkably apolitical speech; the gist of his Resolved, That such Divisions or integral position was that both the Virginia and New Parts shall be styled Districts.37 Jersey Plans were inadequately centralist, and he detailed a reform program which was remi- This makes it sound as though Paterson was niscent of the Protectorate under the Crom- prepared to accept a strong unified central wellian Instrument of Government of 1653. It government along the lines of the Virginia Plan has been suggested that Hamilton did this in if the existing states were eliminated. He may the best political tradition to emphasize the have gotten the idea from his New Jersey moderate character of the Virginia Plan,42 to colleague Judge David Brearley, who on June give the cautious delegates something really 9 had commented that the only remedy to the to worry about; but this interpretation seems dilemma over representation was " . . . that a somehow too clever. Particularly since the sen- map of the U. S. be spread out, that all the timents Hamilton expressed happened to be existing boundaries be erased, and that a new completely consistent with those he privately- partition of the whole be made into 13 equal and sometimes publicly-expressed throughout parts."38 According to Yates, Brearley added his life. He wanted, to take a striking phrase at this point, " . . . then a government on the from a letter to George Washington, a "strong present [Virginia Plan] system will be just."39 well mounted government" ;43 in essence, the This proposition was never pushed-it was Hamilton Plan contemplated an elected life patently unrealistic-but one can appreciate monarch, virtually free of public control, on its purpose: it would have separated the men the Hobbesian ground that only in this fashion from the boys in the large-state delegations. could strength and stability be achieved. The How attached would the Virginians have been other alternatives, he argued, would put policy- to their reform principles if Virginia were to making at the mercy of the passions of the disappear as a component geographical unit mob; only if the sovereign was beyond the (the largest) for representational purposes? Up reach of selfish influence would it be possible to to this point, the Virginians had been in the have government in the interests of the whole happy position of supporting high ideals with community.44 that inner confidence born of knowledge that From all accounts, this was a masterful and the "public interest" they endorsed would compelling speech, but (aside from furnishing nourish their private interest. Worse, they had John Lansing and Luther Martin with am- shown little willingness to compromise. Now munition for later use against the Constitution) the delegates from the small states announced it made little impact. Hamilton was simply that they were unprepared to be offered up as transmitting on a different wave-length from sacrificial victims to a "national interest" the rest of the delegates; the latter adjourned which reflected Virginia's parochial ambition. after his great effort, admired his rhetoric, and Caustic Charles Pinckney was not far off when then returned to business.45 It was rather as if he remarked sardonically that " . . . the whole they had taken a day off to attend the opera. [conflict] comes to this": "Give N. Jersey an Hamilton, never a particularly patient man or equal vote, and she will dismiss her scruples, much of a negotiator, stayed for another ten and concur in the Natil. system."40 What he days and then left, in considerable disgust, for rather unfairly did not add was that the Jersey, New York.46 Although he came back to Phila- delegates were not free agents who could adhere to their private convictions; they had to take 4' J. C. Hamilton, cited ibid., p. 293. back, sponsor and risk their reputations on the 42 See, e.g., Mitchell, op. cit., p. 381. reforms approved by the Convention-and in 43 Hamilton to Washington, July 3, 1787, New Jersey, not in Virginia. Farrand, III, 53. Paterson spoke on Saturday, and one can 44 A reconstruction of the Hamilton Plan is surmise that over the weekend there was a found in Farrand, III, 617-30. good deal of consultation, argument, and 45 Said William Samuel Johnson on June 21: "A caucusing among the delegates. One member at gentleman from New-York, with boldness and least prepared a full length address: on Monday decision, proposed a system totally different from both [Virginia and New Jersey]; and though he 37 Farrand, III, 613. has been praised by every body, he has been sup- 38 Farrand, I, 177. ported by none." Farrand, I, 363. 39 Ibid., p. 182. 46 See his letter to Washington cited supra note 40 Ibid., p. 255. 43. 808 THE AMERICAN POLITICAL SCIENCE REVIEW delphia sporadically and attended the last two yet in a fundamental sense he and his allies had weeks of the Convention, Hamilton played no achieved their purpose: from that day onward, part in the laborious task of hammering out the it could never be forgotten that the state gov- Constitution. His day came later when he led ernments loomed ominously in the background the New York Constitutionalists into the and that no verbal incantations could exorcise savage imbroglio over ratification-an arena in their power. Moreover, nobody bolted the which his unmatched talent for dirty political convention: Paterson and his colleagues took infighting may well have won the day. For in- their defeat in stride and set to work to modify stance, in the New York Ratifying Convention, the Virginia Plan, particularly with respect to Lansing threw back into Hamilton's teeth the its provisions on representation in the national sentiments the latter had expressed in his June legislature. Indeed, they won an immediate 18 oration in the Convention. However, having rhetorical bonus; when Oliver Ellsworth of since retreated to the fine defensive positions Connecticut rose to move that the word "na- immortalized in The Federalist, the Colonel tional" be expunged from the Third Virginia flatly denied that he had ever been an enemy Resolution ("Resolved that a national Govern- of the states, or had believed that conflict be- ment ought to be established consisting of a tween states and nation was inexorable! As supreme Legislative, Executive and Judici- Madison's authoritative Notes did not appear ary"50), Randolph agreed and the motion until 1840, and there had been no press cover- passed unanimously.5' The process of com- age, there was no way to verify his assertions, promise had begun. so in the words of the reporter, " . . . a warm For the next two weeks, the delegates circled personal altercation between [Lansing and around the problem of legislative representa- Hamilton] engrossed the remainder of the day tion. The Connecticut delegation appears to [June 28, 1788]."47 have evolved a possible compromise quite early in the debates, but the Virginians and particu- IV larly Madison (unaware that he would later be On Tuesday morning, June 19, the vacation acclaimed as the prophet of "federalism") was over. James Madison led off with a long, fought obdurately against providing for equal carefully reasoned speech analyzing the New representation of states in the second chamber. Jersey Plan which, while intellectually vigorous There was a good deal of acrimony and at one in its criticisms, was quite conciliatory in mood. point Benjamin Franklin of all people-pro- "The great difficulty," he observed, "lies in posed the institution of a daily prayer; practi- the affair of Representation; and if this could cal politicians in the gathering, however, were be adjusted, all others would be surmount- meditating more on the merits of a good com- able."48 (As events were to demonstrate, this mittee than on the utility of Divine interven- diagnosis was correct.) When he finished, a tion. On July 2, the ice began to break when vote was taken on whether to continue with the Virginia Plan as the nucleus for a new constitu- tion: seven states voted "Yes"; New York, the New Jersey, and Delaware voted "No"; and interesting circumstance was that three of Maryland, whose position often depended on delegates were Constitutionalists (Carroll, Mc- which delegates happened to be on the floor, Henry and Jenifer), while two were opposed divided.49 Paterson, it seems, lost decisively; (Martin and Mercer); and this led to an ad hoc determination of where Maryland would stand when votes were taken. The vote on equality of 47 Farrand, III, 338. to be described infra, was an 48 Farrand, I, 321. representation, instance of this eccentricity. 49 Maryland's politics in this period were only a important bit less intricate than Rhode Island's: the rural 50 This formulation was voted into the Randolph gentry, in much the same fashion that Namier Plan on May 30, 1787, by a vote of six states to described in England, divided up among families none, with one divided. Farrand, I, 30. -Chases, Carrolls, Pacas, Lloyds, Tilghmans, etc. 51 Farrand, I, 335-36. In agreeing, Randolph -and engaged in what seemed, to the outsider, stipulated his disagreement with Ellsworth's elaborate political Morris dances. See Philip A. rationale, but said he did not object to merely Crowl, Maryland During and After the Revolution changing an "expression." Those who subject the (Baltimore, 1943). The Maryland General As- Constitution to minute semantic analysis might sembly named five delegates to the Conveiition do well to keep this instance in mind; if Randolph and provided that "the said Deputies or such of could so concede the deletion of "national," one them as shall attend . . . shall have full Power to may wonder if any word changes can be given represent this State," Farrand, III, 586. The much weight. THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 809 through a number of fortuitous events52--and sent Pennsylvania. His passion for conciliation one that seems deliberate"--the majority was more valuable at this juncture than against equality of representation was con- Wilson's logical genius, or Morris' acerbic wit. verted into a dead tie. The Convention had There is a common rumor that the Framers reached the stage where it woas "ripe" for a divided their time between philosophical dis- solution (presumably all the therapeutic cussions of government and reading the classics speeches had been made), and the South in political theory. Perhaps this is as good a Carolinians proposed a committee. Madison time as any to note that their concerns were and James Wilson wanted none of it, but with highly practical, that they spent little time only Pennsylvania dissenting, the body voted canvassing abstractions. A number of them to establish a working party on the problem of had some acquaintance with the history of representation. political theory (probably gained from reading The members of this committee, one from John Adams' monumental compilation A De- each state, were elected by the delegates-and fense of the Constitutions of Government,54the a very interesting committee it was. Despite first volume of which appeared in 1786), and it the fact that the Virginia Plan had held ma- was a poor rhetorician indeed who could not jority support up to that date, neither Madison cite Locke, Montesquieu, or Harrington in nor Randolph was selected (Mason was the support of a desired goal. Yet tip to this point Virginian) and Baldwin of Georgia, whose shift in the deliberations, no one had expounded a in position had resulted in the tie, was chosen. defense of states'-rights or the "separation of From the composition, it was clear that this powers" on anything resembling a theoretical was not to be a "fighting" committee: the basis. It should be reiterated that the Madison emphasis in membership was on what might be model had no room either for the states or for described as "second-level political entre- the "separation of powers": effectively all preneurs." On the basis of the discussions up to governmental power was vested in the national that time, only Luther Martin of Maryland legislature. The merits of Montesquieu did not could be described as a "bitter-ender." Ad- turn up until The Federalist; and although a mittedly, some divination enters into this sort perverse argument could be made that Madi- of analysis, but one does get a sense of the mood son's ideal was truly in the tradition of John of the delegates from these choices-including Locke's Second Treatise of Government,55the the interesting selection of Benjamin Franklin, despite his age and intellectual wobbliness, 54 For various contemporary comments, see over the brilliant and incisive Wilson or the Warren, pp. 814-818. On Adams' technique, see sharp, polemical Gouverneur Morris, to repre- Zoltan Haraszti, "The Composition of Adams' Defense," in John Adams and the Prophets of 52 According to Luther Martin, he was alone on Progress (Cambridge, 1952), ch. 9. In this con- the floor and cast Maryland's vote for equality of nection it is interesting to check the Convention representation. Shortly thereafter, Jenifer came discussions for references to the authority of on the floor and "Mr. King, from Massachusetts, Locke, Montesquieu and Harrington, the theorists valuing himself on Mr. Jenifer to divide the State who have been assigned various degrees of pa- of Maryland on this question . . . requested of ternal responsibility. There are no explicit refer- the President that the question might be put ences to James Harrington; one to John Locke again; however, the motion was too extraordinary (Luther Martin cited him on the state of nature, in its nature to meet with success." Cited front Farrand, I, 437); and seven to Montesquieu, only "The Genuine Information, . . . " Farrand, III, one of which related to the "separation of powers" 188. (Madison in an odd speech, which he explained in

53 Namely Baldwin's vote for equality of rep- a footnote was given to help a friend rather than resentation which divided Georgia-with Few advance his own views, cited Montesquieu on the absent and Pierce in New York fighting a duel, separation of the executive and legislative Houston voted against equality and Baldwin branches, Farrand, II, 34). This, of course, does shifted to tie the state. Baldwin was originally not prove that Locke and Co. were without influ- from Connecticut and attended and tutored at ence; it shifts the burden of proof, however, to Yale, facts which have led to much speculation those who assert ideological causality. See Ben- about the pressures the Connecticut delegation jamin F. Wright, "The Origins of the Separation may have brought on him to save the day (Georgia of Powers in America," Economica, Vol. 13 (1933), was the last state to vote) and open the way to p. 184. compromise. To employ a good Russian phrase, 55 I share Willmoore Kendall's interpretation of it was certainly not an accident that Baldwin Locke as a supporter of parliamentary supremacy voted the way he did. See Warren, p. 262. and majoritarianism; see Kendall, John Locke and 810 THE AMERICAN POLITICAL SCIENCE REVIEW

Locke whom the American rebels treated as an should have a hand in the process; another honorary president was a pluralistic defender small but influential circle urged direct election of vested rights,56 not of parliamentary su- by the people. There were a number of pro- premacy. posals: election by the people, election by state It would be tedious to continue a blow-by- governors, by electors chosen by state legisla- blow analysis of the work of the delegates; the tures, by the National Legislature (James critical fight was over representation of the Wilson, perhaps ironically, proposed at one states and once the Connecticut Compromise point that an Electoral College be chosen by was adopted on July 17, the Convention was lot from the National Legislature!), and there over the hump. Madison, James Wilson, and was some resemblance to three-dimensional Gouverneur Morris of New York (who was chess in the dispute because of the presence of there representing Pennsylvania!) fought the two other variables, length of tenure and re- compromise all the way in a last-ditch effort to eligibility. Finally, after opening, reopening, get a unitary state with parliamentary suprem- and re-reopening the debate, the thorny prob- acy. But their allies deserted them and they lem was consigned to a committee for resolu- demonstrated after their defeat the essentially tion. opportunist character of their objections- The Brearley Committee on Postponed using "opportunist" here in a non-pejorative Matters was a superb aggregation of talent and sense, to indicate a willingness to swallow their its compromise on the Executive was a master- objections and get on with the business. More- piece of political improvisation. (The Electoral over, once the compromise had carried (by five College, its creation, however, had little in its states to four, with one state divided), its advo- favor as an institution-as the delegates well cates threw themselves vigorously into the job appreciated.) The point of departure for all of strengthening the general government's discussion about the presidency in the Conven- substantive powers-as might have been pre- tion was that in immediate terms, the problem dicted, indeed, from Paterson's early state- was non-existent; in other words, everybody ments. It nourishes an increased respect for present knew that under any system devised, Madison's devotion to the art of politics, to George Washington would be President. Thus realize that this dogged fighter could sit down they were dealing in the future tense and to a six months later and prepare essays for The body of working politicians the merits of the Federalist in contradiction to his basic convic- Brearley proposal were obvious: everybody tions about the true course the Convention got a piece of cake. (Or to put it more aca- should have taken. demically, each viewpoint could leave the Convention and argue to its constituents that V it had really won the day.) First, the state Two tricky issues will serve to illustrate the legislatures had the right to determine the later process of accommodation. The first was mode of selection of the electors; second, the the institutional position of the Executive. small states received a bonus in the Electoral Madison argued for an executive chosen by the College in the form of a guaranteed minimum National Legislature and on May 29 this had of three votes while the big states got accept- been adopted with a provision that after his ance of the principle of proportional power; seven-year term was concluded, the chief third, if the state legislatures agreed (as six did magistrate should not be eligible for reelection. in the first presidential election), the people In late July this was reopened and for a week could be involved directly in the choice of the matter was argued from several different electors; and finally, if no candidate received a points of view. A good deal of desultory speech- majority in the College, the right of decision making ensued, but the gist of the problem was passed to the National Legislature with each the opposition from two sources to election by state exercising equal strength. (In the Brearley the legislature. One group felt that the states recommendation, the election went to the Senate, but a motion from the floor substituted the House; this was accepted on the ground the Doctrine of Majority Rule (Urbana, 1941). that the Senate already had enough authority Kendall's general position has recently received over the executive in its treaty and appoint- strong support in the definitive edition and com- ment powers.) mentary of Peter Laslett, Locke's Two Treatises This compromise was almost too good to be of Government (Cambridge, 1960). true, and the Framers snapped it up with little 56 The American Locke is best delineated in debate or controversy. No one seemed to Carl Becker, The Declaration of Independence think well of the College as an institution; in- (New York, 1948). deed, what evidence there is suggests that there THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 811

was an assumption that once Washington had direct taxation would play in later federal finished his tenure as President, the electors financial policy), but doubts still remained. would cease to produce majorities and the chief The Southerners, on the other hand, were executive would usually be chosen in the House. afraid that Congressional control over coin- George Mason observed casually that the merce would lead to the exclusion of slaves or selection would be made in the House nineteen to their excessive taxation as imports. More- times in twenty and no one seriously disputed over, the Southerners were disturbed over this point. The vital aspect of the Electoral "navigation acts," i.e., tariffs, or special legis- College was that it got the Convention over lation providing, for example, that exports be the hurdle and protected everybody's interests. carried only in American ships; as a section The future was left to cope with the problem depending upon exports, they wanted protec- of what to do with this Rube Goldberg mecha- tion from the potential voracity of their com- nism. mercial brethren of the Eastern states. To In short, the Framers did not in their wisdom achieve this end, Mason and others urged that endow the United States with a College of the Constitution include a proviso that naviga- Cardinals-the Electoral College was neither tion and commercial laws should require a an exercise in applied Platonism nor an experi- two-thirds vote in Congress. ment in indirect government based on elitist These problems came to a head in late Au- distrust of the masses. It was merely a jerry- gust and, as usual, were handed to a committee rigged improvisation which has subsequently in the hope that, in Gouverneur Morris' words, been endowed with a high theoretical content. " . . . these things may form a bargain among When an elector from Oklahoma in 1960 re- the Northern and Southern states."59 The fused to cast his vote for Nixon (naming Byrd Committee reported its measures of reconcilia- and Goldwater instead) on the ground that the tion on August 25, and on August 29 the Founding Fathers intended him to exercise his package was wrapped up and delivered. What great independent wisdom, he was indulging in occurred can best be described in George Ma- historical fantasy. If one were to indulge in son's dour version (he anticipated Calhoun in counter-fantasy, he would be tempted to sug- his conviction that permitting navigation acts gest that the Fathers would be startled to find to pass by majority vote would put the South the College still in operation-and perhaps in economic bondage to the North-it was even dismayed at their descendants' lack of mainly on this ground that he refused to sign judgment or inventiveness.57 the Constitution): The second issue on which some substantial The Constitution as agreed to till a fortnight be- practical bargaining took place was slavery. fore the Convention rose was such a one as he The morality of slavery was, by design, not at would have set his hand and heart to.... [Until issue;58 but in its other concrete aspects, slavery that time] The 3 New England States were con- colored the arguments over taxation, com- stantly with us in all questions . . . so that it was merce, and representation. The "Three-Fifths these three States with the 5 Southern ones Compromise," that three-fifths of the slaves against Pennsylvania, Jersey and Delaware. With would be counted both for representation and respect to the importation of slaves, [decision- for purposes of direct taxation (which was making] was left to Congress. This disturbed the drawn from the past-it was a formula of two Southernmost States who knew that Con- Madison's utilized by Congress in 1783 to gress would immediately suppress the importation establish the basis of state contributions to the of slaves. Those two States therefore struck up a Confederation treasury) had allayed some bargain with the three New England States. If Northern fears about Southern over-represen- they would join to admit slaves for some years, tation (no one then foresaw the trivial role that the two Southern-most States would join in changing the clause which required the 3 of the 57 See John P. Roche, "The Electoral College: Legislature in any vote [on A Note on American Political navigation acts]. It Mythology," Dis- was done.60 sent (Spring, 1961), pp. 197-99. The relevant On the floor of the Convention there was a debates took place July 19-26, 1787, Farrand, II, virtual love-feast on this 50-128, and September 5-6, 1787, happy occasion. ibid., pp. 505- Charles 31. Pinckney of South Carolina attempted to overturn the committee's decision, when the 58 See the discussion on August 22, 1787, compromise was reported to the Farrand, II, 366-375; King seems to have ex- Convention, by pressed the sense of the Convention when he said, 59 Farrand, II, 374. Randolph echoed his senti- "the subject should be considered in a political ment in different words. light only." Ibid. at 373. 60 Mason to Jefferson, cited in Warren, p. 584. 812 THE AMERICAN POLITICAL SCIENCE REVIEW insisting that the South needed protection tion against permitting a congressional ilna from the imperialism of the Northern states. joTrity to enact n1av-igation :tets.63 But his Southern colleagues were not prepared to rock the boat and General C. C. Pinckney PHI arose to spread oil on the suddenly ruffle( Drawing on their vast collective political waters; he admitted that: experience, utilizing every weapon in the poli- tician's arsenal, looking constantly over their It was in the true interest of the S [outhern] States shoulders at their constituents, the delegates to have no regulation of-commerce; but consider- a was a make- ing the loss brought on the commerce of the put together Constitution. It Eastern States by the Revolution, their liberal shift affair; some sticky issues (for example, the qualification of voters) they ducked entirely; conduct towards the views of South Carolina [on others mastered with that ancient instru- the regulation of the slave trade] and the interests they ment of political sagacity, studied ambiguity the weak Southn. States had in being united with (for example, citizenship), and some they just the strong Eastern states, he thought it proper overlooked. In this last category, I suspect, fell that no fetters should be imposed on the power of the matter of the power of the federal courts to making commercial regulations; and that his con- determine the constitutionality of acts of Con- stituents, though prejudiced against the Eastern gress. When the judicial article was formulated States, would be reconciled to this liberality. He had (Article III of the Constitution), deliberations himself prejudices agst the Eastern States before were still in the stage where the legislature was he came here, but would acknowledge that he had with broad under the found them as liberal and candid as any men endowed power Randolph whatever. (Italics added)6" formulation, authority which by its own terms was scarcely amenable to judicial review. In essence, courts could hardly determine when Pierce Butler took the same tack, essentially "1. . .the separate States are incompetent arguing that he was not too happy about the or . . .the harmony of the United States may possible consequences, but that a deal was a be interrupted"; the National Legislature, as deal.62 Many Southern leaders were later-in critics pointed out, was free to define its own the wake of the "Tariff of Abominations"-to jurisdiction. Later the definition of legislative rue this day of reconciliation; Calhoun's authority was changed into the form we know, Disquisition on Government was little more than a series of stipulated powers, but the delegates an extension of the argument in the Conven- never seriously reexamined the jurisdiction of the judiciary under this new limited formulation.64 61 August 29, 1787, Farrand, II, 449-50. 63 62 Ibid., p. 451. The plainest statement of the See John C. Calhoun, A Disquisition on matter was put by the three North Carolina Government (New York, 1943), pp. 21-25, 38. delegates (Blount, Spaight and Williamson) in Calhoun differed from Mason, and others in the their report to Governor Caswell, September 18, Convention who urged the two-thirds require- 1787. After noting that "no exertions have been ment, by advocating a functional or interest veto wanting on our part to guard and promote the rather than some sort of special majority, i.e., he particular interest of North Carolina," they went abandoned the search for quantitative checks ill on to explain the basis of the negotiations in cold- favor of a qualitative solution. blooded fashion: "While we were taking so much 64 The Committee on Detail altered the general care to guard ourselves against being over reached grant of legislative power envisioned by the and to form rules of Taxation that might operate Virginia Plan into a series of specific grants; these in our favour, it is not to be supposed that our were examined closely between August 16 and Northern Brethren were Inattentive to their par- August 23. One day only was devoted to the ticular Interest. A navigation Act or the power to Judicial Article, August 27, and since no one regulate Commerce in the Hands of the National raised the question of judicial review of Federal Government . . . is what the Southern States statutes, no light was cast on the matter. A num- have given in Exchange for the advantages we ber of random comments on the power of the Mentioned." They concluded by explaining that judiciary were scattered throughout the discus- while the Constitution did deal with other matters sions, but there was another variable which de- besides taxes-"there are other Considerations of prives them of much probative value: the proposed great Magnitude involved in the system"--they Council of Revision which would have joined the would not take up valuable time with boring Executive with the judges in legislative review. details! Farrand, III, 83-84. Madison and Wilson, for example, favored this THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 813

All arguments on the intention of the Framers that the Constitution would prove to be a in this matter are thus deductive and a posteri- liability in Virginia politics, where Patrick ori, though some obviously make more sense Henry was burning up the countryside with than others.05 impassioned denunciations. Presumably, Ran- The Framers were busy and distinguished dolph wanted to check the temper of the men, anxious to get back to their families, their populace before he risked his reputation, and positions, and their constituents, not members perhaps his job, in a fight with both Henry and of the French Academy devoting a lifetime to a Richard Henry Lee.67 Events lend some justifi- dictionary. They were trying to do an impor- cation to this speculation: after much temporiz- tant job, and do it in such a fashion that their ing and use of the conditional subjunctive tense, handiwork would be acceptable to very diverse Randoph endorsed ratification in Virginia and constituencies. No one was rhapsodic about the ended up getting the best of both worlds. final document, but it was a beginning, a move Madison, despite his reservations about the in the right direction, and one they had reason Constitution, was the campaign manager in to believe the people would endorse. In addi- ratification. His first task was to get the Con- tion, since they had modified the impossible gress in New York to light its own funeral pyre amendment provisions of the Articles (the re- by approving the "amendments" to the quirement of unanimity which could always be Articles and sending them on to the state frustrated by "Rogues Island") to one demand- legislatures. Above all, momentum had to be ing approval by only three-quarters of the maintained. The anti-Constitutionalists, now states, they seemed confident that gaps in the thoroughly alarmed and no novices in politics, fabric which experience would reveal could be realized that their best tactic was attrition rewoven without undue difficulty. rather than direct opposition. Thus they set- So with a neat phrase introduced by Ben- tled on a position expressing qualified approval jamin Franklin (but devised by Gouverneur but calling for a second Convention to remedy Morris)66 which made their decision sound various defects (the one with the most dema- unanimous, and an inspired benediction by the gogic appeal was the lack of a Bill of Rights). Old Doctor urging doubters to doubt their own Madison knew that to accede to this demand infallibility, the Constitution was accepted and would be equivalent to losing the battle, nor signed. Curiously, Edmund Randolph, who had would he agree to conditional approval (despite played so vital a role throughout, refused to wavering even by Hamilton). This was an all- sign, as did his fellow Virginian George Mason or-nothing proposition: national salvation or and Elbridge Gerry of Massachusetts. Ran- national impotence with no intermediate posi- dolph's behavior was eccentric, to say the tions possible. Unable to get congressional ap- least-his excuses for refusing his signature proval, he settled for second best: a unanimous have a factitious ring even at this late date; the resolution of Congress transmitting the Consti- best explanation seems to be that he was afraid tution to the states for whatever action they saw fit to take. The opponents then moved from New York and the Congress, where they technique-which had nothing in common with had attempted to attach amendments and what we think of as judicial review except that conditions, to the states for the final battle.68 judges were involved in the task. 65 For what it may be worth, I think that 67 See a very interesting letter, from an tun- judicial review of congressional acts was logically known source in Philadelphia, to Jefferson, on all fours with review of state enactments and October 11, 1787: "Randolph wishes it well, & it is that it was certainly consistent with the view that thought would have signed it, but he wanted to the Constitution could not be amended by the be on a footing with a popular rival." Farrand, Congress and President, or by a two-thirds vote III, 104. Madison, writing Jefferson a full account of Congress (overriding a veto), without the on October 24, 1787, put the matter more deli- agreement of three-quarters of the states. Ex- cately--he was working hard on Randolph to win ternal evidence from that time supports this view, him for ratification: "[Randolph] was not in- see Charles Warren, Congress, the Constitution, and veterate in his opposition, and grounded his re- the Supreme Court (Boston, 1925), pp. 41-128, but fusal to subscribe pretty much on his unwilling- the debates in the Convention prove nothing. ness to commit himself, so as not to be at liberty 66 Or so Madison stated, Farrand, II, 643. to be governed by further lights on the subject." Wilson too may have contributed; he was close to Ibid., p. 135. Franklin and delivered the frail old gentleman's 68 See Edward P. Smith, "The Movement To- speeches for hini. wards a Second Constitutional Convention in 814 THE AMERICAN POLITICAL SCIENCE REVIEW

At first the campaign for ratification went of James Madison as a rather dessicated beautifully: within eight months after the character should spend some time with this delegates set their names to the document, transcript. Probably Madison put on his most eight states had ratified. Only in Massachusetts spectacular demonstration of nimble rhetoric had the result been close (187-168). Theoreti- in what might be called "The Battle of the cally, a ratification by one more state convention Absent Authorities." Patrick Henry in the would set the new government in motion, but course of one of his harangues alleged that in fact until Virginia and New York acceded to Jefferson was known to be opposed to Virginia's the new Union, the latter was a fiction. New approving the Constitution. This was clever: Hampshire was the next to ratify; Rhode Henry hated Jefferson, but was prepared to Island was involved in its characteristic politi- use any weapon that came to hand. Madison's cal convulsions (the Legislature there sent the riposte was superb: First, he said that with all Constitution out to the towns for decision by due respect to the great reputation of Jefferson, popular vote and it got lost among a series of he was not in the country and therefore could local issues) ;69 North Carolina's convention did not formulate an adequate judgment; second, not meet until July and then postposed a final no one should utilize the reputation of an out- decision. This is hardly the place for an ex- sider-the Virginia Convention was there to tensive analysis of the conventions of New think for itself; third, if there were to be re- York and Virginia. Suffice it to say that the course to outsiders, the opinions of George Constitutionalists clearly outmaneuvered their Washington should certainly be taken into opponents, forced them into impossible politi- consideration; and finally, he knew from privi- cal positions, and won both states narrowly. leged personal communications from Jefferson The Virginia Convention could serve as a clas- that in fact the latter strongly favored the sic study in effective floor management: Patrick Constitution.72 To devise an assault route into Henry had to be contained, and a reading of the this rhetorical fortress was literally impossible. debates discloses a standard two-stage tech- VII nique. Henry would give a four- or five-hour speech denouncing some section of the Consti- The fight was over; all that remained now tution on every conceivable ground (the federal was to establish the new frame of government district, he averred at one point, would become in the spirit of its framers. And who were better a haven for convicts escaping from state qualified for this task than the Framers them- authority!) ;70 when Henry subsided, "Mr. Lee selves? Thus victory for the Constitution of Westmoreland" would rise and literally meant simultaneous victory for the Constitu- poleaxe him with sardonic invective (when tionalists; the anti-Constitutionalists either Henry complained about the militia power, capitulated or vanished into limbo-soon "Lighthorse Harry" really punched below the Patrick Henry would be offered a seat on the belt: observing that while the former Governor Supreme Court73 and Luther Martin would be had been sitting in Richmond during the Revo- known as the Federalist "bull-dog."74 And lution, he had been out in the trenches with the irony of ironies, Alexander Hamilton and James troops and thus felt better qualified to discuss Madison would shortly accumulate a reputa- military affairs). 71 Then the gentlemanly Con- tion as the formulators of what is often alleged stitutionalists (Madison, Pendleton and Mar- to be our political theory, the concept of shall) would pick up the matters at issue and "federalism." Also, on the other side of the examine them in the light of reason. ledger, the arguments would soon appear over Indeed, modern Americans who tend to think what the Framers "really meant"; while these disputes have assumed the proportions of a big scholarly business in the last century, they 1788," in J. F. Jameson, ed., Essays in the Consti- tutional History of the United States (Boston, 72 Ibid., p. 329. 1889), pp. 46-115. 73 Washington offered him the Chief Justiceship 69 See Bishop, op. cit., passim. in 1796, but he declined; Charles Warren, The 70 See Elliot's Debates on the Federal Constitu- Supreme Court in United States History (Boston, tion (Washington, 1836), Vol. 3, pp. 436-438. 1947), Vol. 1, p. 139. 71 This should be quoted to give the full flavor: 74 He was a zealous prosecutor of seditions in "Without vanity, I may say I have had different the period 1798-1800; with Justice Samuel Chase, experience of [militia] service from that of like himself an alleged "radical" at the time of the [Henry]. It was my fortune to be a soldier of my Constitutional Convention, Martin hunted down country.... I saw what the honorable gentleman Jeffersonian heretics. See James M. Smith, Free- did not see-our men fighting...... "Ibid., p. 178. dom's Fetters (Ithaca, 1956), pp. 342-43. THE FOUNDING FATHERS: A REFORM CAUCUS IN ACTION 815 began almost before the ink on the Constitu- they meant, that there may not have been any tion was dry. One of the best early ones featured semantic consensus. The Convention was not a Hamilton versus Madison on the scope of seminar in analytic philosophy or linguistic presidential power, and other Framers char- analysis. Commerce was commerce-and if acteristically assumed positions in this and different interpretations of the word arose, other disputes on the basis of their political later generations could worry about the convictions. problem of definition. The delegates were in a Probably our greatest difficulty is that we hurry to get a new government established; know so much more about what the Framers when definitional arguments arose, they char- should have meant than they themselves did. We acteristically took refuge in ambiguity. If are intimately acquainted with the problems different men voted for the same proposition that their Constitution should have been for varying reasons, that was politics (and still designed to master; in short, we have read the is); if later generations were unsettled by this mystery story backwards. If we are to get the lack of precision, that would be their problem. right "feel" for their time and their circum- There was a good deal of definitional stances, we must in Maitland's phrase, pluralism with respect to the problems the " . . . think ourselves back into a twilight." delegates did discuss, but when we move to the Obviously, no one can pretend completely to question of extrapolated intentions, we enter escape from the solipsistic web of his own en- the realm of spiritualism. When men in our vironment, but if the effort is made, it is pos- time, for instance, launch into elaborate tal- sible to appreciate the past roughly on its own mudic exegesis to demonstrate that federal aid terms. The first step in this process is to aban- to parochial schools is (or is not) in accord with don the academic premise that because we can the intentions of the men who established the ask a question, there must be an answer. Republic and endorsed the Bill of Rights, they Thus we can ask what the Framers meant are engaging in historical Extra-Sensory Per- when they gave Congress the power to regulate ception. (If one were to join this E. S. P. interstate and foreign commerce, and we contingent for a minute, he might suggest that emerge, reluctantly perhaps, with the reply the hard-boiled politicians who wrote the that (Professor Crosskey to the contrary not- Constitution and Bill of Rights would chuckle withstanding) 75 they may not have known what scornfully at such an invocation of authority: obviously a politician would chart his course 75 Crosskey in his sprawling Politics and the on the intentions of the living, not of the dead, Constitution (Chicago, 1953), 2vols., has developed and count the number of Catholics in his con- with almost unbelievable zeal and intricacy the stituency.) thesis that the Constitution was designed to estab- The Constitution, then, was not an apotheo- lish a centralized unitary state, but that the sis of "constitutionalism," a triumph of archi- political leadership of the Republic in its forma- tectonic genius; it was a patch-work sewn to- tive years betrayed this ideal and sold the pass to gether under the pressure of both time and states'-rights. While he has unearthed some inter- events by a group of extremely talented demo- esting newspaper articles and other material, it is cratic politicians. They refused to attempt impossible for me to accept his central proposition. the establishment of a strong, centralized Madison and the other delegates, with the excep- sovereignty on the principle of legislative tions discussed in the text supra, did want to supremacy for the excellent reason that the diminish the power of the states and create a people would not accept it. They risked their vigorous national government. But they were not political fortunes by opposing the established fools, and were, I submit, under no illusions when doctrines of state sovereignty because they they departed from Philadelphia that this end had were convinced that the existing system was been accomplished. The crux of my argument is leading to national impotence and probably that political realities forced them to water down foreign domination. For two years, they worked their objectives and they settled, like the good to get a convention established. For over three politicians they were, for half a loaf. The basic difficulty with Crosskey's thesis is that he knows cial points in the argument he falls back on a too much-he assumes that the Framers had a type of divination which can only be described perfectly clear idea of the road they were taking; as Kabbalistic. He may be right, for example, with a semantic machete he cuts blandly through in stating (without any proof) that Richard all the confusion on the floor of the meeting to the Henry Lee did not write the "Letters from a Fed- real meanings. Thuis, despite all his ornate re- eral Farmer," but in this country spectral evi- search apparatus, there is a fundamentally non- dence has not been admissible since the Seven- empirical quality about Crosskey's work: at cru- teenth Century. 816 THE AMERICAN POLITICAL SCIENCE REVIEW months, in what must have seemed to the aller, as the farthest point the delegates felt faithful participants an endless process of give- they could go in the destruction of state power and-take, they reasoned, cajoled, threatened, without themselves inviting repudiation. and bargained amongst themselves. The result To conclude, the Constitution was neither a was a Constitution which the people, in fact, by victory for abstract theory nor a great practical democratic processes, did accept, and a new success. Well over half a million men had to and far better national government was die on the battlefields of the Civil War before established. certain constitutional principles could be Beginning with the inspired propaganda of defined-a baleful consideration which is some- Hamilton, Madison and Jay, the ideological how overlooked in our customary tributes to build-up got under way. The Federalist had the farsighted genius of the Framers and to the little impact on the ratification of the Consti- supposed American talent for "constitutional- tution, except perhaps in New York, but this ism." The Constitution was, however, a vivid volume had enormous influence on the image demonstration of effective democratic political of the Constitution in the minds of future action, and of the forging of a national elite generations, particularly on historians and which literally persuaded its countrymen to political scientists who have an innate fondness hoist themselves by their own boot straps. for theoretical symmetry. Yet, while the shades American pro-consuls would be wise not to of Locke and Montesquieu may have been translate the Constitution into Japanese, or hovering in the background, and the delegates Swahili, or treat it as a work of semi-Divine may have been unconscious instruments of a origin; but when students of comparative transcendent telos, the careful observer of the politics examine the process of nation-building day-to-day work of the Convention finds no in countries newly freed from colonial rule, over-arching principles. The "separation of they may find the American experience instruc- powers" to him seems to be a by-product of tive as a classic example of the potentialities of suspicion, and "federalism" he views as a pis a democratic elite.