The Imperial Debate

This chapter covers the imperial debate between the colonists and Great Britain between the early 1760s and 1776. The debate began with the differing ideas of representation held by the colonists and the mother country. But eventually it came to focus on the doctrine of sovereignty that said that in every state there must be one final supreme lawmaking authority. The colonists’ inability to deal with the doctrine of sovereignty forced them to create a new conception of the British Empire in which they were outside of Parliament’s authority and tied only to the king. The debate climaxed with the Declaration of Independence.

The Federal Constitution

This chapter describes the Convention that met in Philadelphia from the end of May to mid-September 1787 to draft the new federal Constitution. The Virginia plan, created largely by James Madison, was the working model for the Constitution. It proposed a strong national government with an executive, a bicameral legislature, and a Supreme Court. The main controversy had to do with whether both houses of the legislature would be based on proportional representation as the Virginia plan proposed. The small states objected, and after much debate the Convention agreed to equal representation with two senators from each state. To elect the president, the Convention created an alternative Congress, which became the electoral college. In the state-ratifying conventions the opponents of the Constitution raised the fears of consolidation and aristocracy.

Introduction

This introduction sets the stage for the most creative period of constitutionalism in American history. During the five or six decades between the early 1760s and the early nineteenth century, Americans debated and explored all aspects of politics and constitution-making—the nature of power and liberty, the differing ideas of representation, the importance of rights, the division of authority between different spheres of government or federalism, the doctrine of sovereignty, the limits of judicial authority, and the significance of written constitutions. Rarely has any nation in such a short period of time discussed and debated so many issues of constitutionalism and created so many institutions of government, institutions that have lasted for over two hundred years.

The Great Demarcation Between Public and Private

One of the major consequences of the Revolution was a clarification of the demarcation between private and public. In the ancien régime of the colonial period, the distinction between private and public had often been blurred. Social authority seemed to be a prerequisite to political authority, which enabled private individuals to conduct public affairs as if they were their own private business. The state was weak and used its legal authority to entice or compel private individuals to undertake things on behalf of the public. This was seen most clearly in the use of the corporation. All this was changed by the Revolution. Within a few years following the Declaration of Independence, the relation between state and society, pubic and private, including the nature of the corporation, had been transformed.

The Crisis of the 1780s

This chapter describes the crisis that led to the calling of the convention that created the federal Constitution in 1787. Although the Articles of Confederation that united the thirteen states lacked the powers to tax and regulate trade, the country was not doing too badly economically or demographically. But the state legislatures were abusing the great power that had been granted to them in the revolutionary state constitutions and tending to ran amuck. The multiplicity, mutability, and injustice of state legislation, especially with the printing of paper money, led reformers to use the weakness of the Confederation as a cover to scrap the Articles and to create an entirely new and powerful central government.

The Emergence of the Judiciary

In the massive rethinking that took place in the 1780s and 1790s nearly all parts of America’s governments were reformed and reconstituted, but the institution that was most transformed was the judiciary. In the colonial period judges had been largely seen as the much scorned and insignificant appendage of crown authority. In the several decades following the Declaration of Independence they had become an equal and independent part of the modern tripartite federal and state governments with the authority to declare void acts of the legislatures that violated the constitutions. This power, later called judicial review, developed slowly and haltingly, for it seemed to many to violate the legislative authority of the people. But changing ideas of representation helped to make sense of the transformation.

Slavery and Constitutionalism

One of the major problems faced by Americans in the Revolutionary era was slavery, and they had made it a problem. Slavery had existed in the colonies for generations without substantial criticism until the Revolution. Abolishing slavery became one of the major reforms undertaken by the Revolutionaries. In the northern states they were reasonably successful, putting an end to slavery by 1804. Virginia was crucial, and there the effort failed. Virginians and others consoled themselves with the illusion that slavery was dying a natural death. But the desire of South Carolina and Georgia for twenty more years of slave importation should have exposed the illusions. The Deep South’s commitment to slavery required protective clauses in the new Constitution that eventually became sources of sectional division.

Epilogue

This brief epilogue attempts to answer why Rhode Island was so criticized and why it alone refused to attend the Constitutional Convention. It was by far the most democratic colony and state and the most commercially advanced. It had the weakest elite and the most middling elements, which made it an ideal example of what was to come in the wild and disorderly northern economy of antebellum America. Its excessive paper money was a symptom of its advanced commercial character and the source of much of its economic success in the nineteenth century.

State Constitution-Making

This chapter describes the constitution-making by the thirteen independent republics. Most of them created bicameral legislatures, single executives, and independent judiciaries. They set forth the idea of separation of powers, which forbade members of the legislature or judiciary from simultaneously holding office in the executive, thus setting American constitutional development off in a very direction from that of the former mother country. At the same time, the Americans established written constitutions that were different from and superior to the institutions of government and they worked out devices (constitutional conventions) for creating these constitutions. Several of the constitutions had bills of rights.