Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (6 page)

James Madison spent several months researching the history of confederations before the Philadelphia Convention met. He found much to
encourage his desire for a stronger federation. He decided, in fact, to push
for the abandonment of America's federal experiment.

Madison, a veteran of many legislative battles in Virginia and in Congress, encouraged his fellow Virginia delegates-Governor Edmund Randolph, George Washington, and George Mason among them-to arrive in
Philadelphia several days early. If the Old Dominion presented its plan
at the beginning of the convention, he thought, that blueprint would
guide the convention's deliberations.

Thus, when the Philadelphia Convention opened, its first acts were to
install George Washington as president of the convention, to vote to close
the doors so that the public would not know what was being discussed,
and to take up the constitutional proposals on which the Virginians had
agreed. Those provisions came to be called the Virginia Plan.

The Virginia Plan was the outline of a national government. It would
have substituted a central government with all the power national officials could want for the federal government of the Confederation. This
was a type of government to which the people were known to be aversewhich explains why the Philadelphia Convention operated in secret, and
why its minutes, like James Madison's famous notes, were kept secret for
decades after the event.

Fortunately for us, there were delegates to the Convention who kept
notes of what was said up to the point of their departure. Most notable are those of New York delegate Robert Yates, one-time chief justice of the
Empire State. He tells us that Virginia's governor, Edmund Randolph,
explained the Virginia proposals' rationale with three resolutions:

1. Resolved, That a union of the States merely federal, will not
accomplish the objects proposed by the articles of the confederation, namely, common defence, security of liberty, and general welfare. 2. Resolved, That no treaty or treaties among any
of the States as sovereign, will accomplish or secure their common defence, liberty, or welfare. 3. Resolved, That a national
government ought to be established, consisting of a supreme
judicial, legislative, and executive.

As Yates explains matters, another delegate objected at that point that
the goal of the Convention was to propose amendments to the Confederation, not to create a national government. If it adopted the first two resolutions, then, the Convention would be at an end. When asked what the
third resolution meant by the word "supreme," the answer was that the
states should yield when they conflicted with the federal government.
Six states voted for that resolution, which was thus temporarily adopted.
Over the following days, the Convention adopted resolutions about a
"national" legislature and a "national" executive. The limit of the Convention's nationalism in its early days was reached when James Wilson
of Pennsylvania proposed multi-state districts for the Senate and the Convention rejected his proposal.

It may be useful to note at this point that there were three parties in the
Convention. The first was a monarchist party, the chief exemplar of
which was New York's Alexander Hamilton. The monarchists were intent
on wiping the states from the map and substituting one unitary govern ment for the entire continent. In the Convention, Hamilton made a
famous speech in which he avowed his admiration for the British constitution and said that while the American people were not prepared to
assimilate their government to the British model so closely as he could
wish, he owed it to himself to speak frankly. He called for a president
with a life term, senators with life terms, and appointment of governors
by the president-all in the manner of Great Britain. Hamilton here displayed two of his outstanding characteristics: candor and intellectual
brilliance. Many delegates, we are told, thought very highly of Hamilton's
learned disquisition, although none joined him in his characteristic nearsuicidal frankness.

Portrait of a Patriot

George Mason (1725-1792) was one of the towering figures in American constitutional history. His Virginia Declaration of Rights (1776), the first American bill
of rights, provided a template-and in many cases language-for the other
states', the federal, the French, the UN, and numerous other bills of rights. Mason played an
extremely significant role in the Philadelphia Convention that wrote the Constitution, including
helping to defeat efforts to draft a national-in lieu of a federal-constitution and insisting that the
assent of nine states be required for ratification. He also proposed that the House of Representatives
initiate all money bills, that Congress be able to ban slave importation, that export taxes be banned,
that lawmakers not be able to hop into plush positions in other branches, and that the House
resolve electoral college deadlocks. Mason played a key role in devising the procedure for overriding
presidential vetoes, and his refusal to sign the Constitution, coupled with his resounding insistence
that it not be ratified until a bill of rights was added, helped spur Federalists to pledge to submit a
bill of rights to the states in the first Congress.

The second party consisted of nationalists, people who-without
ever avowing admiration for the monarchical form-wanted to push centralization as far as reasonably could be hoped. These people hoped
to establish a centralized government largely dominated by their own
states. Most prominent among these was Virginia's James Madison, long
Hamilton's coadjutor in the Federalist cause, whose work the Virginia
Plan chiefly was. In the wake of the Convention, Madison would be
greatly dismayed by the discrepancy between what he had wanted and
what the Convention had yielded. He repeatedly acted in positions of
high public trust over the next four decades to bring the federal regime
into consonance with his proposals-even to the extent of arguing that
the Constitution meant what the Convention had squarely decided that
it should not mean. We will return to the topic of Madison's peculiar role
in American constitutional history again and again.

Finally, there was a cohort in the Convention of members insistent
on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity-a truly federal, rather than national, government. They would have their way in the
short run. In time, however, "constitutional law" would undo their victory almost completely.

Early in the Convention, the committee of the whole house very narrowly agreed to create a national government with a national executive,
a national legislative, and a national judicial branch. It also agreed that
the national legislature ought to be empowered to legislate in all cases to
which the separate states might be incompetent and all areas in which
the harmony of the states might be interrupted by separate state legislation. In addition, it decided that the national legislature should have a
veto over state laws it considered contrary to the articles of union. At this
early stage in the convention, the committee of the whole also decided
that the national judiciary should have power to decide all cases affecting the "national peace and harmony."

How do we know these things? We can extract them from the record of
deliberations provided by two of the delegates, Maryland's Luther Martin-who first provided the three-party classification of the delegates
given above-and New York's Robert Yates. In addition, we have the journal of the Convention. As the Philadelphia Convention early on decided to
create a national government with an overwhelmingly powerful national
legislature and a very strong national judiciary, and as by the end of the Convention it had produced a federal constitution without either of those features, we are on firm ground in concluding that the change was no accident.

The Constitution as finally referred to Congress by the Convention featured a federal legislative body, or Congress, without either the sweeping
legislative authority or the veto over state laws earlier proposed by the
advocates of a national government (and
supported, through the summer, by the theoretical monarchists). We know that this
decision was a carefully considered one
because delegate James Madison of Virginia
repeatedly implored the other delegates to
restore the congressional veto of state laws,
only to see his arguments repeatedly
rejected.

Rather than wiping the states off the map,
the Convention made their continued existence essential to the selection of members
of Congress. First, members of the House of
Representatives would be elected by voters eligible to vote for members
of the relevant state legislatures. No state, no representatives. And as for
senators, they would not be selected by the president (as Hamilton, following the model of the British House of Lords, would have preferred) or
by the lower house of Congress (as Madison and the Virginia nationalists
proposed), but were to be chosen by the state legislatures.

Madison was very unhappy that the new Congress, like the old ones,
would be federal, not national. He confided to Thomas Jefferson on October 24, 1787, that he feared the ongoing state role in federal policymaking meant that the new government would be too responsive to the
people's whims. This new government would be inadequate to nationalist aims, just as the old one had been. (Madison had also broached the
idea that Congress should be empowered to sic the U.S. Navy on states
that did not comply with national commands. The Convention rejected
that idea too.)

Legal Latinisms

Veto: Latin for "I forbid." A refusal by the
president or a governor to sign into law a
bill that has been passed by a legislature.
Unlike the British royal veto, American
vetoes can be overridden by supermajority vote.

There were other provisions displeasing to the monarchist-nationalist
coalition as well. Instead of saying "Congress may legislate as it will" or
"Congress may legislate in any area to which it considers the states
incompetent," the final Constitution carefully hedged congressional
power.

In Article I, Section 8 the draft Constitution included a list of congressional powers. Virtually all of them were related to foreign affairs and
trade. They were also few and provided little wiggle room for expansion.
And in the course of the ratification dispute of 1787-1788, Federalists
from north to south promised to take a tightly constricted view of constitutional interpretation.

The judiciary article of the Constitution also lived up to the hopes of
the delegates favoring a federal over a national structure. Instead of giving
federal courts power to hear any cases Congress wanted them to hear (that
is, cases "affecting the national peace and harmony"), as the HamiltonMadison, monarchist-nationalist coalition had proposed, the Convention
restricted federal courts' jurisdiction in two ways. First, the Constitution
did not require that there be any federal trial courts at all. In fact, Madison would promise in the ratification debate in Virginia that the new government would try to get along without them. Only if that experiment
failed, he said, would federal trial courts be created.

The Constitution also provided a list of the kinds of cases Congress
might authorize federal courts to decide-which meant, as lawyers
understood things in those days, that Congress could not authorize federal courts to decide any other kinds of cases. Instead of a national
judiciary, in other words-one with power to hear any case that came to
hand-Article III created a federal judiciary and left most judicial power
in the state governments.

Portrait of a Patriot