The Federalist Papers (1787-1789)
Federalist Essay No.37 - No. 40
Readers of the U.S. Constitution should be conscious that the framers know it not to be faultless, and that no one expected a faultless plan.
The first difficulty faced by the convention was that they had no examples of confederacies to follow, only examples of failed confederacies that helped them figure out what not to do.
The biggest challenge was to balance the forces of an energetic government with a protection of civil liberties, to balance powers between the federal and state government and between the small and the large states. It is amazing that unanimity was arrived upon. This is either because the delegates were not torn apart by vastly different political factions, or that they all understood the importance of compromise for the preservation of the union.
With all the criticisms of the new document, there is no comparison between the Articles of Confederation and the U.S. Constitution. Since the old one was not supposed to be perfect, the same can hardly be expected of the new one. The worst mistake of the old one is that it all the federal power to a single branch of a federal government.
Critics argue that the powers of the old one will never threaten individual liberty, however, because the power of congress depends on the authority of the states to carry it out. Therefore the government is nothing but a lifeless mass, with the semblance of responsibility but no authority to carry it out.
Only a republican form of government is suitable for America, its founding principles and its fundamental belief in self-government. A republic can be defined as a government that derives its authority from the great body of the people, and is administered by people holding office through the selection of those people.
The manner in which the office holders are selected is less important, as long as they are either directly or indirectly appointed by the great body of the society. All of the current state constitutions require some indirect appointments for the officials. However, unlike the state constitutions, the U.S. Constitution allows for impeachment of the President at any time during his term.
Critics argue that the framers of the new constitution should have preserved the federal form of government, and preserved a confederacy of independent states. Instead, they claim, the framers constructed a national government, a consolidation of the states.
The proposed plan of government describes a mixture of federal and national government. It is federal because the convention met through delegates from the states, because the ratification relies on approval of 9 states, because the Senate is made up of representatives by state, and because each act retains its own sovereignty in choosing to join the union. It is national because the House of Representatives is comprised of representatives of the people, and because the new government operates on individual citizens.
The election of the executive branch, and the amendment process is a combination of national and federal governments. The extent of the powers of the government reflects a federal government, because powers not specifically granted to the central government are retained by the state.
The Constitutional Convention was authorized to frame a new plan of government because the resolutions of both the Annapolis Convention and of the Confederation Congress authorized a convention to enact further alterations and provisions to make the Constitution adequate to the exigencies of the union, under the regulations of the Articles of Confederation and subject to the approval of the states and Congress.
If it was not possible for the convention to carry out all of those instructions, it carried out the appropriate one and sacrificed the means to the ends. If providing for the exigencies meant not altering the Articles, then the convention did the right thing by prioritizing the needs of the union. Anyway, the new Constitution is not actually a set of entirely new ideas, but rather an expansion of the principles within the Articles of Confederation.
The one way in which the convention departed from their instructions was that the new document requires approval of the people and only 9 of 13 states. The critics rarely point to this change as one of their objections, indicating that the majority of Americans believe that it is absurd for 12 states to be subject to the ideas of the 13th.
The Constitution in its current form is only good advice and will only become powerful with the approval of the people. The delegates to the convention pursued their responsibilities with great concern for the crisis in the country and understanding of the importance of not overstepping their authority in the eyes of the people. They felt privileged to propose a plan to the people that would provide for their happiness and success similar to the First and Second Continental Congress, and if they had acted in a way that would not lead to the most happiness, they would be judged as hypocrites by the entire world.
Even if the convention was totally unauthorized, does that mean that the states should not take good advice? Even if they have overstepped their authority, their ideas should be embraced because it will bring happiness to the American people.
The history of the Constitutional Convention is one of many tenuous compromises. Given the concerns of the small states versus the large states, and the southern state versus the northern states, and the different philosophies on strong versus weak central government, it is amazing that any plan was agreed to at all.
After agreeing to discard the Articles of Confederation during the first week of the convention, the delegates further agreed to very little. The first major issue was to determine how representatives would be elected to the legislative branch, and it became a contest between the large states arguing for representation based on population and small states arguing for equal representation. The large states plan called for a bi-cameral legislature--both houses to have elected representatives in proportion to their population. In contrast, the small states plan called for a one-house legislative branch in which representation would be equal for each state--one state, one vote--similar to representation in the Confederation Congress.
This debate also reflected a theoretical dispute about the nature of a central government. James Madison argued that a shift from a confederation of states, in which each state had an equal vote, to a national republican government required a shift from equal representation to representation based on population. He argued that in a national government the power fundamentally rests with the people, not in the states. The resolution to this debate was called the Great Compromise, which calls for a bi-cameral legislative branch including one house elected proportional to population and one house elected equally from the states.
The decision to adopt the Great Compromise contributes to what Publius describes as a mixed national and federal republic. The election of the Senate would be considered to be evidence of a federal form of government because it relies on the independence of each state, while the election of the House of Representatives is evidence of a national form of government because it relies on the people directly.
Additional debates over the counting of slaves for the purposes of taxation and representation and the power of congress to regulate trade via export taxes demonstrated sharp divisions between northern and southern delegates. The southern slave-holding states wanted their slaves to be counted towards their total population because this would give them greater representation in Congress. Northern non-slave states were quick to point out that it was wrong to count a person towards representation that was not even considered a citizen and had no voting rights. Additionally, Southern states wanted to count slaves towards representation, but not towards per-capita taxation.
The controversial, but temporarily effective resolution to this issue was imbedded in the Great Compromise, and included in Article I of the U.S. Constitution. It is called the 3/5 Compromise. Article I, Section 2 of the Constitution declares that population for the purposes of representation and taxation would be determined by adding the whole number of free people, including indentured servants, plus 3/5 of all slaves. Indians would not be counted. A slave was constitutionally defined as 3/5 of a person for the purposes of representation and taxation. This agreement served to allow southern states to partially count their large slave populations, but required that whoever counted was also taxed. The agreement totally ignored the moral aspects of slavery, however, postponing that explosive issue to a later date.
The prohibition against taxing exports reflects another major compromise arrived at during the Constitutional Convention referred to as the Commerce Compromise that temporarily resolved sectional jealousies between North and South. The southern economy relied upon the export of cash crops to thrive. Southerners feared that strong northern industry in manufacturing and commerce would influence the federal government to impose duties on imports and exports. Duties on exports would destroy the profit margin for southern plantation farmers whose cotton, tobacco and other cash crops were sold cheaply and in abundance throughout the world. Therefore, Congress was only allowed the power to tax imports, and never exports. This protected the agricultural industry of the south while granting the central government a much-needed power of regulation over commerce.
The ratification of the U.S. Constitution required the approval of only a large majority of the state ratifying conventions, 9 of 13, not a unanimous acceptance. While this potentially breaks the rule of the minority dictating to the majority, as discussed earlier in The Federalist , it also allowed for the Constitution to go into effect without a few individual states standing in the way. In fact, the three largest state--Virginia, Massachusetts, and New York--all ratified the Constitution after the document had been officially approved by 9 of the 13 states. While it would have been ideal for the people to vote directly on the document, even the most ardent of nationalists did not trust their direct authority and preferred to instead place it in a representative state ratifying convention.
The miracle of the U.S. Constitution is that it was accepted and has continued to function despite so many conflicting viewpoints and inconsistencies. The desire for unity, and the forethought of the framers to include a process of amendment and adjustment provided a strong but flexible document that did win the support of the people and provided for prosperity, military strength and the necessary protection of liberty against an energetic government.