The Genius of America (12 page)

The question then became the timing of such amendments. Here the Federalists were adamant. There could be no bill of rights until after the Constitution was ratified, for otherwise the ratification process would be derailed, a new convention required, and its product very much uncertain. Their strategy became to promise support for a bill of rights in the first Congress in return for ratification support at the various state ratification conventions.

Madison himself became a key spokesman for the new strategy. Traveling home to Virginia, in early March of 1788, to stand for election as delegate to that state's ratification convention, he was challenged by an important Baptist minister who opposed the Constitution for its failure to affirmatively protect freedom of religion. Madison argued that such a demand would doom the new Constitution and not guarantee that a new convention would produce a new national government, let alone one that protected religious freedom. Rather, he argued for supporting ratification on the basis of his promise, along with that made by other Federalist leaders, that a first order of business in the new Congress would be a bill of rights, including religious freedom. (Both would live up to their side of the bargain.)

By the time of the Virginia convention, this Federalist strategy was working. Massachusetts went first. On February 6, it became the sixth state to ratify the Constitution. The debate in Massachusetts had been fierce. On a daily basis, Anti-Federalists such as Elbridge Gerry and Agrippa ( James Winthrop of Massachusetts) fired away at threats the new government would pose to individual liberties. And the relatively close vote of 187–168 evidenced the power of that argument. In the end, victory was only ensured by the agreement of Federalists to support a future bill of rights. “I give my assent to the Constitution,” declared Massachusetts's convention president and state governor John Hancock, “in full confidence that amendments proposed will soon become a part of the system.” The Massachusetts convention recommended a list of amendments to the Constitution that, it said, “would remove the fears, and quiet the apprehensions, of many of the good people of this commonwealth, and more effectually guard against an undue administration of the federal government.” This same strategy was then adopted by South Carolina and New Hampshire.

Virginia followed suit. Despite Henry's extraordinary efforts, he could not stop the momentum for ratification, fueled by Madison's influence with the delegates generally and particularly with his old friend Governor Edmund Randolph, who in the end supported ratification. On June 25,Virginia's delegates voted 89–79 (Henry voted no) to support the Constitution. But that ratification also charged Virginia's future members of Congress to “exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions, in the manner provided by the fifth article of the said Constitution; and, in all congressional laws to be passed in the mean time, to conform to the spirit of these amendments, as far as the said Constitution will admit.” Those foregoing alterations consisted of a list covering a number of topics including a bill of rights, which provided, among other things, for freedom of speech and religion, freedom to assemble and petition government, freedom from undue search and seizure, and trial by jury.

Virginia's ratification strengthened the Federalists in New York. The most pressing question at the convention's end seemed to be whether New York would stand alone among the influential states in opposing ratification. Many New York delegates in fact were willing to take that position. On July 26, 1788, New York voted to join the new nation by the slimmest of margins (30–27), and only after a bill of rights was recommended.

On September 13, 1788, the Continental Congress resolved that the Constitution had been ratified and commanded that the first Wednesday in March 1789 would be the time and that New York, seat of the old confederation Congress, would be the place “for commencing proceedings under the said Constitution.”

The new Constitution had survived its first test and shown its resilience before it even took effect. But there was a lot of political blood on the floor, and the partisan rivalries were only just beginning. Patrick Henry and his fellow Anti-Federalists in charge of the Virginia legislature, using the power to select senators given them by the new Constitution, denied Madison a seat in the new Senate. But Madison campaigned and won a seat in the House of Representatives, whose members were directly elected, beating a friend, James Monroe. Madison, fulfilling the promise he had made to that Baptist minister and other Americans, asked the first Congress on June 8, 1789, to enact a bill of rights he had culled from the over eighty provisions that had been suggested: “It will be a desirable thing, to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled . . . There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of federalism, if they were satisfied on this one point.”

Getting a bill of rights through Congress took a bit of work.

Madison's own enthusiasm to see the work through was not exactly matched by his fellow members of Congress. For many new congressmen, it was a minor matter compared to the more tangible task of establishing the new government. At the same time, the Anti-Federalists in Congress continued their campaign against the powerful centralized government by trying to block the very bill of rights many of them had argued for. If they could block a bill of rights, they reasoned, they could force a new constitutional convention where they could strengthen state power. Both New York and Virginia, in ratifying the Constitution, had called for a new convention. That thought terrified and galvanized the Federalists, who knew a new convention could reopen everything in Madison's delicately balanced government plan.

Finally, five months after Madison asked Congress for a bill of rights, Congress transmitted twelve proposed amendments to the states for approval. One amendment, to immediately enlarge the membership of the House of Representatives, died. Another, to block congressmen from raising their pay during their current term of office, was eventually enacted—203 years later, on May 7, 1992, as the Twenty-seventh Amendment.

On December 15, 1791, Madison's Virginia provided the final votes needed for ratification of the other ten amendments, the ten we all now know as the Bill of Rights.

The new government was in place, and the Constitution, as amended, was in effect. The ratification of the Bill of Rights completed America's progress from an independent but shaky confederation to a republic with an innovative new government that would eventually prove to be a model of democratic stability.

But few Americans were paying close attention to this last stretch of the opening journey. For most, the drama of the creation had already faded into the background of their everyday life. But in this background the framers' vision would be tested again and again. The battle over ratification and the Bill of Rights was just the first such test. Americans would demand more from their Constitution than the text alone allowed. In this case the Constitution accommodated those demands. The question would be: Could it do so in the future?

Part Two

THANK GOD, IT WORKED

Our Constitution works. Our great Republic is a government of laws and not of men.

—G
ERALD
F
ORD
, 1974

4

TO MEET EXTRAORDINARY NEEDS

It is patriotism to write in favor of our government and sedition to write against it.

—
A
LBANY
C
ENTINEL
, 1798

Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against dangers real or pretended from abroad.

—J
AMES
M
ADISON
, 1798

T
HE DAY GE RALD FORD became the thirty-eighth president it was obvious history was in the making. His predecessor, Richard M. Nixon, had just resigned in scandal. The chief justice of the Supreme Court, Warren E. Burger, administered the oath prescribed by the Constitution. Ford pledged, as every president before him had, to “faithfully execute the Office of President of the United States, and . . . to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Completing the oath, Ford moved to the podium and declared “our long national nightmare” of Watergate was over. “Our Constitution works. Our great Republic is a government of laws and not of men.” As Ford left the podium, the chief justice, a Nixon appointee, turned to Senator Hugh Scott of Pennsylvania and in a far more personal expression of relief exclaimed about the constitutional system, “Hugh, it worked. Thank God, it worked.”

But what, exactly, is it that had worked? Certainly, the checks and balances as the framers had written them in the Constitution had proven sound. But just as surely, there was something more important than just the words on parchment, as Madison had once characterized the idea of a bill of rights. No, from the beginning our Constitution was more than just a document. What developed around it—and then what worked—was Americans behaving in a manner consistent with the larger ideas, values and principles behind the Constitution.

These responsibilities that the Constitution bestows on us is what we have called our Constitutional Conscience. It was this unwritten sense of the Constitution that empowered Republican Senator Howard Baker to put his institutional role as a member of Congress above his partisan duties and demand of a Republican president: What did he know, and when did he know it? It is what gave a judge, John Sirica, who had voted for that president, the strength to issue a ruling in uncharted legal territory that ultimately helped push the president from office. They exercised authority beyond the four corners of the written document—authority that had evolved after the Constitution was written and without any formal amendment of it. When Chief Justice Burger thanked God that it had worked, he was saying in a much pithier way the same thing Franklin Delano Roosevelt had said forty years earlier: “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why our constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced.”

In the name of national security and presidential prerogatives, Nixon had attempted to thwart the constitutional obligation of the legislature and judiciary to oversee his activities. It was neither the first nor the last time the country faced such a struggle. Indeed, within seven years of the Constitution's ratification, there was a crisis in which the party in power suppressed domestic dissent in the name of national security. Richard Nixon and his Republican allies spied on their enemies and lied about it. John Adams and his Federalist allies had taken one step further in 1798, criminalizing criticism of their own activities and then arresting their critics.

That early crisis, triggered by enactment of the Sedition Act, revealed that the checks and balances of Madison's system were less than foolproof and that the country had no agreed-upon way to decide when the Constitution had been transgressed. Within years, the country developed one, an independent judiciary, unique in the world at that time. The threads from those early days to our more recent history are easy enough to follow. President Nixon was checked, in good measure, by a federal judge exercising judicial power developed after the Constitution was written, but within its framework.

The simplicity of the Constitution has made it adaptable. Without constitutional amendment, both the federal courts and the presidency have emerged from surprisingly unclear beginnings to help stabilize the Constitution and the Republic against a variety of difficult challenges. That is the genius of its design.

The framers, of course, could not have anticipated the break-in at the Watergate or many other events and changes across the nation's history. That is why adaptability was and is so vital. But what the framers did anticipate was the fundamental nature of men and of politics, which is what their essential form of government was designed to control. Self-interest and self-regard have motivated those with political power to seek more power than is granted to them. The invention of a representative government with divided powers has repeatedly checked the excesses of the powerful, although sometimes, as in both 1798 and 1974, only after national crisis.

Chief Justice Burger's palpable sense of relief, his implicit recognition that a very different outcome to the Watergate scandal might have been possible, would have baffled most Americans in 1974. Of course it worked. What else would you have expected? Americans experienced Watergate as a “nightmare” of continuing revelations of criminal activity by a president (and his staff), for whom an overwhelming majority had voted in 1972.

But to most Americans, the working of the Constitution is assumed. Americans admire, even revere, the Constitution. Times of crisis, like Watergate, remind us of its role in helping to define and unify us. But our knowledge of its goals, its institutions and their processes, or its history is thin. It is part of our lives but not really part of our education. Most Americans probably could not see Nixon and Watergate as a modern version of exactly what the framers feared. Americans could not perceive a different America, an America in which power was seized and tyranny prevailed. To Americans living in the Watergate era, or today, tyranny is something that happens in other times or other places. It couldn't happen here. But to the framers, tyranny was something that could, and had, happened here. Fear of men with too much power, of the tyranny of a king, of an established church, of a despot, of aristocrats and, at least as important, of a popular majority dominated their thinking from independence through ratification of the Constitution and the Bill of Rights and the early years of the new nation. George Washington warned in his Farewell Address to the nation of a future in which “cunning, ambitious, and unprincipled men” would attempt “to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.” They would often do so believing that what was good for them was good for America, as when President Nixon declared that his decision to obstruct the various inquires into the Watergate affair “were made in what [he] believed at the time to be the best interest of the Nation.”