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The New Constitution: For and Against

The 1787 convention in Philadelphia created a document (the Constitution) which would radically reshape the United States. Establishing a “federal” system in which the central government held a great deal more authority than under the Articles of Confederation. Divided into executive (embodied in the President), legislative (Congress), and judicial (the federal courts), the new system gave what its authors asserted were clearly defined and limited powers to the federal government.

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An anonymous anti-Constitution letter

A letter published in the Massachusetts Gazette
January, 1788

To the Publick.

Many are the arts made use of by our aristocratick gentlemen, to accomodate the federal constitution to the yeomanry of the country. But it is very unlucky for them, that they should be so far misled, as to attempt to trump up one thing which appears by no means to be founded in truth, viz that none but placemen and pensioners are opposed to it. This is so far from [equating] with truth, that we conceive it to be an absolute falsehood. We would ask the disinterested part of the community just to look over the characters w[h]ich are so fond of swallowing this creature, which exhibits all the pourtraits of an over-bearing aristocracy, and see if they are not chiefly composed of salary men and pensioners, and those who at least think themselves fair candidates for places of honour and emolument, whenever the aristocratick wheels of the federal chariot shall be set in motion.

When we see the adherents to this constitution chiefly made up of civil and ecclesiastical gown men, and their dependents, the expedient they have hit upon is not likely to have the intended effect. There are many men destitute of eloquence, yet they can see and hear—They can think and judge, and are therefore not likely to be wheedled out of their senses by the sophistical reasonings of all the advocates for this new constitution in the country combined. We know this is not true; and as we well know the design of such representations, we would have those gentlemen know, that it will not take. They must pull upon some other string, or they must fail. Another thing they tell us, that the constitution must be good, from the characters which composed the Convention that framed it. It is graced with the names of a Washington and a Franklin. Illustrious names, we allow—worthy characters in civil society. Yet we cannot suppose them, to be infallible guides, neither yet that a man must necessarily incur guilt to himself merely by dissenting from them in opinion.

We cannot think the noble general, [Washington] has the same ideas with ourselves, with regard to the rules of right and wrong. We cannot think, he acts a very consistent part, or did through the whole of the contest with Great Britain: who, notwithstanding he wielded the sword in defence of American liberty, yet at the same time was, and is to this day, living upon the labours of several hundreds of miserable Africans, as free born as himself; and some of them very likely descended from parents who, in point of property and dignity in their own country, might cope with any man in America.We do not conceive we are to be overborne by the weight of any names, however revered. “ALL MEN ARE BORN FREE AND EQUAL;” if so, every man hath a natural and unalienable right to his own opinion, and, for asserting this right, ought not to be stimatized with the epithets of tenacious and dogmatical. If we were to pin our faith on any sleeves but our own (without derogating in the least from the merit of any one of the Massachusetts delegates in the federal convention) we should be as likely to pin it on the sleeve of the hon. mr. Gerry as any one of them. But we mean to see with our own eyes, and thus seeing to act for ourselves. In this view, as a tribute due from us to that hon. gentleman, we must acknowledge his tenderness, his care for the preservation of the liberties of the people, and his desire on all occasions to preserve them from invasion. This hon. gentleman was one who assisted in rearing the pillars of a republican government, he has ever since aided in the support of them, and thus hath acted a much more consistent part than those his brethren, who, after all the expense and fatigue of rearing the building, are now for razing the foundations, destroying instead of repairing the frame, and erecting another, which by no means can answer the good purpose of sheltering the people from storms. But, to lay aside the metaphor—

This gentleman is much more consistent, than those who are for turning our republican government into a hateful aristocracy. And we must think it very dishonourable in the aristocratickal party, to treat the worthy gentleman, in the manner they have done in the publick papers. We can assure them it has been far from helping their cause. We do not wish to tire the publick, but would hint to those gentlemen, who would would rob the people of their liberties, that their sophistry is not like to produce the effect. We are willing to have a federal constitution. We are willing another trial should be made; this may be done without derogating from the gentlemen, who composed the late convention. In framing a constitution for this commonwealth, two trials were made before one would stick. We are willing to relinquish so much, as to have a firm, energetick government, and this we are sensible may be done, without becoming slaves, to the capricious fancies of any sett of men whatever. It is argued, that there is no danger that the proposed rulers will be disposed to exercise any powers that this constitution puts into their hands, which may enable them to deprive the people of their liberties. But in case, say they, they should make such attempts, the people may, and will rise to arms and prevent it; in answer to which, we have only to say, we have had enough of fighting in the late war, and think it more eligible, to keep our liberties in our own hands, whilst it is in our power thus to do, than to place them in the hands of fallible men, like ourselves, who may if they please, entirely deprive us of them, and so we be at last reduced to the sad alternative of losing them forever, or recovering them back by the point of the sword. The aristocratick party are sensible, that these are the sentiments of the majority of the community, and their conduct plainly evinces the truth of a well known ancient adage— ” Nothing cuts like the truth.”

James Wilson’s pro-Constitution speech the Pennsylvania legislature

Mr. Chairman and Fellow Citizens:

Having received the honor of an appointment to represent you in the late convention, it is perhaps my duty to comply with the request of many gentlemen whose characters and judgements I sincerely respect, and who have urged that this would be a proper occasion to lay before you any information which will serve to explain and elucidate the principles and arrangements of the constitution that has been submitted to the consideration of the United States….

It will be proper … to mark the leading discrimination between the State constitutions and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.

This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition — what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? If, indeed, a power similar to that which has been granted for the regulation of commerce had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. With respect likewise to the particular district of ten miles, which is to be made the seat of federal government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be exclusively lodged in the President, Senate, and House of Representatives of the United States. But this could not be an object with the Convention, for it must naturally depend upon a future compact to which the citizens immediately interested will, and ought to be, parties; and there is no reason to suspect that so popular a privilege will in that case be neglected. In truth, then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject — nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.

Another objection that has been fabricated against the new constitution, is expressed in this disingenious form — “The trial by jury is abolished in civil cases.” I must be excused, my fellow citizens, if upon this point I take advantage of my professional experience to detect the futility of the assertion. Let it be remembered then, that the business of the Federal Convention was not local, but general — not limited to the views and establishments of a single State, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties. When, therefore, this subject was in discussion, we were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a trial by jury differed in the different States. It was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the States idle and useless; and it could not with any propriety be said that, “The trial by jury shall be as heretofore,” since there has never existed any federal system of jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions; for cases depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in courts of equity, do not require the intervention of that tribunal. How, then was the line of discrimination to be drawn? The Convention found the task too difficult for them, and they left the business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the Supreme Court are to be regulated by the Congress, which is a faithful representation of the people; and the oppression of government is effectually barred, by declaring that in all criminal cases the trial by jury shall be preserved.

This constitution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in the time of peace. This has always been a topic of popular declamation; and yet I do not know a nation in the world which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility. Nor is it a novelty with us; for under the present articles of confederation, Congress certainly possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along the banks of the Ohio. But what would be our national situation were it otherwise? Every principle of policy must be subverted, and the government must declare war, before they are prepared to carry it on. Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defence. The consequence is too obvious to require any further delineation, and no man who regards the dignity and safety of his country can deny the necessity of a military force, under the control and with the restrictions which the new constitution provides.

Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful aristocracy in the federal Senate. This body branches into two characters, the one legislative and the other executive. In its legislative character it can effect no purpose, without me co-operation of the House of Representatives, and in its executive character it can accomplish no object without the concurrence of the President. Thus fettered I do not know any act which the Senate can of itself perform, and such dependence necessarily precludes every idea of influence and superiority. But I will confess that in the organization of this body a compromise between contending interests is descernible; and when we reflect how various are the laws commerce, habits, population and extent of the confederated States, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part, my admiration can only be equalled by my astonishment in beholding so perfect a system formed from such heterogeneous materials.

The next accusation I shall consider is that which represents the federal constitution, as not only calculated, but designedly framed, to reduce the State governments to mere corporations and eventually to annihilate them. Those who have employed the term corporation upon this occasion are not perhaps aware of its extent. In common parlance, indeed, it is generally applied to petty associations for the ease and convenience of a few individuals; but in its enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the States, and even this projected system is nothing more than a formal act of incorporation. But upon what presence can it be alleged that it was designed to annihilate the State governments? For I will undertake to prove that upon their existence depends the existence of the Federal plan. For this purpose, permit me to call your attention to the manner in which the President, Senate and House of Representatives are proposed to be appointed. The President is to be chosen by electors, nominated in such manner as the legislature of each State may direct; so that if there is no legislature there can be no electors, and consequently the office of President cannot be supplied.

The Senate is to be composed of two Senators from each State, chosen by the Legislature; and, therefore, if there is no Legislature, there can be no Senate. The House of Representatives is to be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature; unless, therefore, there is a State Legislature, that qualification cannot be ascertained, and the popular branch of the federal constitution must be extinct. From this view, then, it is evidently absurd to suppose that the annihilation of the separate governments will result from their union; or, that having that intention, the authors of the new system would have bound their connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous, for you will perceive, without prejudice to the powers of the Legislature in the election of Senators, the people at large will acquire an additional privilege in returning members to the House of Representatives; whereas, by the present confederation, it is the Legislature alone that appoints the delegates to Congress.

The power of direct taxation has likewise been treated as an improper delegation to the federal government; but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the union, and to discharge the debts contracted upon the collected faith of the States for their common benefit, it must be acknowledged that those upon whom such important obligations are imposed, ought in justice and in policy to possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary evils? I will venture to predict that the great revenue of the United States must, and always will, be raised by impost, for, being at once less obnoxious and more productive, the interest of the government will be best promoted by the accommodation of the people. Still, however, the objects of direct taxation should be within reach in all cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource, than in the form of an impost, which by universal assent, is left to the authority of the federal government. In either case, the force of civil institutions will be adequate to the purpose; and the dread of military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild imagination or a factious spirit. But the salutary consequences that must flow from thus enabling the government to receive and support the credit of the union, will afford another answer to the objections upon this ground. The State of Pennsylvania particularly, which has encumbered itself with the assumption of a great proportion of the public debt, will derive considerable relief and advantage, for, as it was the imbecility of the present confederation which gave rise to the funding law, that law must naturally expire, when a competent and energetic federal system shall be substituted — the State will then be discharged from an extraordinary burthen, and the national creditor will find it to be his interest to return to his original security.

After all, my fellow-citizens, it is neither extraordinary or unexpected that the constitution offered to your consideration should meet with opposition. It is the nature of man to pursue his own interest in preference to the public good, and I do not mean to make any personal reflection when I add that it is the interest of a very numerous, powerful and respectable body to counteract and destroy the excellent work produced by the late convention. All the officers of government and all the appointments for the administration of justice and the collection of the public revenue which are transferred from the individual to the aggregate sovereignty of the States, will necessarily turn the stream of influence and emolument into a new channel. Every person, therefore, who enjoys or expects to enjoy a place of profit under the present establishment, will object to the proposed innovation; not, in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence. I will confess, indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it which, if my wish had prevailed, would certainly have been altered. But when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every State) has an equal pretension to assert his own, I am satisfied that anything nearer to perfection could not have been accomplished. If there are errors, it should be remembered that the seeds of reformation are sown in the work itself and the concurrence of two-thirds of the Congress may at any time introduce alterations and amendments. Regarding it, then, in every point of view, with a candid and disinterested mind, I am bold to assert that it is the best form of government which has ever been offered to the world.

Letter from the Federal Farmer to the Republican (October 9, 1787)

Dear Sir,

The essential parts of a free and good government are a full and equal representation of the people in the legislature, and the jury trial…in the administration of justice — a full and equal representation, is that which possesses the same interests, feelings, opinions, and views the people themselves would were they all assembled — a fair representation, therefore, should be so regulated, that every order of men in the community, according to the common course of elections, can have a share in it — in order to allow professional men, merchants, traders, farmers, mechanics, etc. to bring a just proportion of their best informed men respectively into the legislature, the representation must be considerably numerous — We have about 200 state senators in the United States, and a less number than that of federal representatives cannot, clearly, be a full representation of this people, in the affairs of internal taxation and police, were there but one legislature for the whole union. The representation cannot be equal, or the situation of the people proper for one government only — if the extreme parts of the society cannot be represented as fully as the central — It is apparently impracticable that this should be the case in this extensive country — it would be impossible to collect a representation of the parts of the country five, six, and seven hundred miles from the seat of government.

Under one general government alone, there could be but one judiciary, one supreme and a proper number of inferior courts. I think it would be totally impracticable in this case to preserve a due administration of justice, and the real benefits of the jury trial…— there are now supreme courts in each state in the union; and a great number of county and other courts subordinate to each supreme court — most of these supreme and inferior courts are itinerant, and hold their sessions in different parts every year of their respective states, counties and districts — with all these moving courts, our citizens, from the vast extent of the country must travel very considerable distances from home to find the place where justice is administered. I am not for bringing justice so near to individuals as to afford them any temptation to engage in law suits; though I think it one of the greatest benefits in a good government, that each citizen should find a court of justice within a reasonable distance, perhaps, within a day’s travel of his home; so that, without great inconveniences and enormous expences, he may have the advantages of his witnesses and jury — it would be impracticable to derive these advantages from one judiciary — the one supreme court at most could only set in the centre of the union, and move once a year into the centre of the eastern and southern extremes of it — and, in this case, each citizen, on an average, would travel 150 or 200 miles to find this court — that, however, inferior courts might be properly placed in the different counties, and districts of the union, the appellate jurisdiction would be intolerable and expensive.

If it were possible to consolidate the states, and preserve the features of a free government, still it is evident that the middle states, the parts of the union, about the seat of government, would enjoy great advantages, while the remote states would experience the many inconveniences of remote provinces. Wealth, offices, and the benefits of government would collect in the centre: and the extreme states and their principal towns, become much less important.

There are other considerations which tend to prove that the idea of one consolidated whole, on free principles, is ill-founded — the laws of a free government rest on the confidence of the people, and operate gently — and never can extend their influence very far — if they are executed on free principles, about the centre, where the benefits of the government induce the people to support it voluntarily; yet they must be executed on the principles of fear and force in the extremes — This has been the case with every extensive republic of which we have any accurate account.

There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed — a free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers, which will soon be plainly seen by those who are governed, as well as by those who govern: and the latter will know they cannot be passed unperceived by the former, and without giving a general alarm — These rights should be made the basis of every constitution: and if a people be so situated, or have such different opinions that they cannot agree in ascertaining and fixing them, it is a very strong argument against their attempting to form one entire society, to live under one system of laws only. — I confess, I never thought the people of these states differed essentially in these respects; they having derived all these rights from one common source, the British systems; and having in the formation of their state constitutions, discovered that their ideas relative to these rights are very similar. However, it is now said that the states differ so essentially in these respects, and even in the important article of the trial by jury, that when assembled in convention, they can agree to no words by which to establish that trial, or by which to ascertain and establish many other of these rights, as fundamental articles in the social compact. If so, we proceed to consolidate the states on no solid basis whatever.

But I do not pay much regard to the reasons given for not bottoming the new constitution on a better bill of rights. I still believe a complete federal bill of rights to be very practicable. Nevertheless I acknowledge the proceedings of the convention furnish my mind with many new and strong reasons, against a complete consolidation of the states. They tend to convince me, that it cannot be carried with propriety very far — that the convention have gone much farther in one respect than they found it practicable to go in another; that is, they propose to lodge in the general government very extensive powers — powers nearly, if not altogether, complete and unlimited, over the purse and the sword. But, in its organization, they furnish the strongest proof that the proper limbs, or parts of a government, to support and execute those powers on proper principles (or in which they can be safely lodged) cannot be formed. These powers must be lodged somewhere in every society; but then they should be lodged where the strength and guardians of the people are collected. They can be wielded, or safely used, in a free country only by an able executive and judiciary, a respectable senate, and a secure, full, and equal representation of the people. I think the principles I have premised or brought into view, are well founded — I think they will not be denied by any fair reasoner. It is in connection with these, and other solid principles, we are to examine the constitution. It is not a few democratic phrases, or a few well formed features, that will prove its merits; or a few small omissions that will produce its rejection among men of sense; they will enquire what are the essential powers in a community, and what are nominal ones; where and how the essential powers shall be lodged to secure government, and to secure true liberty.

In examining the proposed constitution carefully, we must clearly perceive an unnatural separation of these powers from the substantial representation of the people. The state governments will exist, with all their governors, senators, representatives, officers and expences; in these will be nineteen-twentieths of the representatives of the people; they will have a near connection, and their members an immediate intercourse with the people; and the probability is, that the state governments will possess the confidence of the people, and be considered generally as their immediate guardians.

The general government will consist of a new species of executive, a small senate, and a very small house of representatives. As many citizens will be more than three hundred miles from the seat of this government as will be nearer to it, its judges and officers cannot be very numerous, without making our governments very expensive. Thus will stand the state and the general governments, should the constitution be adopted without any alterations in their organization; but as to powers, the general government will possess all essential ones, at least on paper, and those of the states a mere shadow of power. And therefore, unless the people shall make some great exertions to restore to the state governments their powers in matters of internal police; as the powers to lay and collect, exclusively, internal taxes, to govern the militia, and to hold the decisions of their own judicial courts upon their own laws final, the balance cannot possibly continue long; but the state governments must be annihilated, or continue to exist for no purpose.

It is however to be observed, that many of the essential powers given the national government are not exclusively given; and the general government may have prudence enough to forbear the exercise of those which may still be exercised by the respective states. But this cannot justify the impropriety of giving powers, the exercise of which prudent men will not attempt, and imprudent men will, or probably can, exercise only in a manner destructive of free government. The general government, organized as it is, may be adequate to many valuable objects, and be able to carry its laws into execution on proper principles in several cases; but I think its wannest friends will not contend, that it can carry all the powers proposed to be lodged in it into effect, without calling to its aid a military force, which must very soon destroy all elective governments in the country, produce anarchy, or establish despotism. Though we cannot have now a complete idea of what will be the operations of the proposed system, we may, allowing things to have their common course, have a very tolerable one. The powers lodged in the general government, if exercised by it, must intimately effect the internal police of the states, as well as external concerns; and there is no reason to expect the numerous state governments, and their connections, will be very friendly to the execution of federal laws in those internal affairs, which hitherto have been under their own immediate management. There is more reason to believe, that the general government, far removed from the people, and none of its members elected oftener than once in two years, will be forgot or neglected, and its laws in many cases disregarded, unless a multitude of officers and military force be continually kept in view, and employed to enforce the execution of the laws, and to make the government feared and respected. No position can be truer than this, that in this country either neglected laws, or a military execution of them, must lead to a revolution, and to the destruction of freedom. Neglected laws must first lead to anarchy and confusion; and a military execution of laws is only a shorter way to the same point — despotic government.

Instability during the Confederacy Period: Shays’s Rebellion

The Articles of Confederation, adopted during the War for Independence, established a system in which most power was held by the individual states rather than in a strong central government. By the mid-1780s, rebellions in several states–including one led by Daniel Shays in Massachusetts–illustrated the drawbacks of such limited government. This account of the Rebellion is from a dozen years after the fact.

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