The Founding Fathers’

Guide to the Constitution

by Brion McClanahan

Copyright © 2012 by Brion McClanahan

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means electronic or mechanical, including photocopy, recording, or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in a magazine, newspaper, or broadcast.

First ebook edition ©2011

eISBN: 978-1-59698-286-4

The Library of Congress has cataloged the hardcover edition as follows:

McClanahan, Brion T.

The Founding Fathers’ Guide to the Constitution / Brion McClanahan.

p. cm.

ISBN 978-1-59698-193-5 (hardback)

1. Constitutional history—United States. 2. United States. Constitutional Convention (1787) 3. Founding Fathers of the United States. I. Title.

KF4541.M335 2012

342.7302’9—dc23

2011020735

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To my children

Contents

Introduction

Chapter 1

The Preamble

Chapter 2

The Legislative Branch

Chapter 3

The Executive Branch

Chapter 4

The Judiciary

Chapter 5

Miscellaneous Subjects

Chapter 6

Amendments and a Bill of Rights

Appendix A

Appendix B

Acknowledgments

Notes

Introduction

Both the Left and Right claim the Constitution and its meaning as their own. Leftists like to cite the elastic clauses of the Constitution while conservatives often call it a limiting document. But how did the founding generation view the document, particularly when it was being sold to the States for ratification? What did the Preamble mean to them? How did they define the powers of Congress, the president, and the federal court system? And what about the so-called elastic or sweeping clauses of the Constitution? Does the Left have a case, or is the Constitution a limiting document as the Right suggests? The battle over the Constitution and its meaning cuts to the heart of the United States polity.

The story of how the Constitution came to be is well told. Following the American War for Independence, the central government under the Articles of Confederation proved too weak to handle the tasks of the Union. There was internal discord (particularly in Massachusetts), State paper currency was worthless, taxes were too high, treaties were unenforceable, and the commercial relationships between several States were strained at best. The Union seemed to be in peril and open to a foreign invasion. As a result, several leading men in the States—Alexander Hamilton and James Madison foremost among them—advocated calling a convention to discuss changes to the Articles.

They first met at Annapolis in 1786, but delegates from only five States showed up, and they were powerless to make any substantial recommendations to the United States Congress. They instead called for a new convention to meet in Philadelphia in May 1787 under the guise of amending the Articles of Confederation. Fifty-five men from eleven States attended, among them some of the most distinguished names in American history, including George Washington and Benjamin Franklin. Many were shocked to learn that Madison and Hamilton did not want to amend the Articles, but instead wished to start over with a new governing document. Madison, through fellow Virginian Edmund Randolph, presented the famous Virginia Plan to the Convention in the opening week. This plan scrapped the Articles, created a new national government with supreme legislative, executive, and judicial branches, and truncated the powers of the States. For his part, Hamilton preferred that the States be abolished altogether and advocated that both the executive and the members of the upper house in the national congress be elected for life. Neither Hamilton nor Madison would have his wish, and the document they would be forced to defend during the ratification process barely resembled the ambitious plans each man wanted when the Convention began.

During that hot summer in 1787, the members of the Philadelphia Convention hammered out in secret deliberations what Catherine Drinker Bowen called the Miracle at Philadelphia.1 The end result was a document littered with compromises, the most important being one between the small States and large States. Everyone at that time, however, knew that those terms were nothing more than code words for a national centralized government versus a federal decentralized government. That part of the story is often omitted, but it was the real battle. As the Constitution moved to the States for ratification, the great debate was whether we should have a national or a federal government. The Constitution created a stronger central authority, as its proponents wanted, but it also had limits—and it was the central government’s limits that were sold to an otherwise reluctant public. Most Americans would not have accepted ratification had the Constitution not been presented as a plan for a strictly limited government. That is the key to understanding the Constitution.

Some say the Constitution cannot be understood at all. In December 2010, liberal columnist Ezra Klein said, The issue of the Constitution is that the text is confusing because it was written more than 100 years ago, and what people believe it says differs from person to person and differs depending on what they want to get done.2 Just three months earlier, historian and author Ron Chernow suggested that because the founding generation never agreed on anything, a founding interpretation of the Constitution is impossible.3 But neither of these critiques is right.

Certainly, Chernow is correct that the founding generation vigorously debated the meaning of the Constitution, particularly when it was sent to the States for ratification. But, in contrast to his assertion that Americans cannot arrive at a founding interpretation, a clear consensus can be gleaned from these debates. We know how the founding generation interpreted the various provisions of the Constitution because we can read what they said. The Constitution is not ambiguous or difficult to understand. Of course, the trappings of power and, at times, practical political problems altered views of the Constitution, even in the founding generation, but this did not change the meaning of the Constitution as ratified. The record is clear. The way proponents of the document defended it is the way it should be interpreted. Unfortunately for men like Klein and Chernow, that interpretation does not often mesh with their vision for American government. It never has for progressives.

A few definitions are in order. Which of the Founding Fathers are included in The Founding Fathers’ Guide to the Constitution? The answer is simple: all of them. In addition to James Madison and Alexander Hamilton—the two members of that generation who, because of the Federalist Papers, are often cited as the true expositors of the document—others, such as James Wilson, Patrick Henry, Luther Martin, Roger Sherman, Elbridge Gerry, George Mason, William Richardson Davie, James Iredell, Oliver Ellsworth, Melancton Smith, John Dickinson, Charles Pinckney, John Rutledge, and Robert Whitehill, are frequently cited for their contributions to the debate. Some were both members of the Philadelphia Convention of 1787 and their State ratifying conventions. Others took part only in their State conventions, and others, such as Tench Coxe and Richard Henry Lee, took part in neither but provided critique and analysis of the Constitution and its provisions. They were all part of the debate over ratification and, as such, it was their Constitution.

The common terms Federalist and Anti-federalist are not found in this book; instead I’ve substituted the terms proponents and opponents respectively. Opponents of the Constitution were never comfortable with the term Anti-federalist. They correctly pointed out during the ratification debates that what they wanted was to retain the federal system of the Articles of Confederation, and the proponents of the Constitution, instead of being federalists, were in fact nationalists bent on eliminating the State governments. Elbridge Gerry of Massachusetts remarked in 1789 that those who were called antifederalists at the time complained that they had injustice done them by the title, because they were in favor of a Federal Government, and the others were in favor of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made. Their names then ought not to have been distinguished by federalists and antifederalists, but rats and antirats.4 This colorful description may be tinged by the politics of his day, but Gerry was on to something. Our modern conception of how the Constitution was argued and ratified has also been distorted by the way the winning side framed the debate. This work takes the other side seriously.

In fact, the way the winning side described the Constitution has led to perhaps one of the greatest misnomers in American history. Rather than use the term federal to describe the government created by the Constitution, this book replaces it with general or central as the founding generation described it. The government was constituted for the general purposes of the Union and, as opponents argued, it had only one federal component in the original document, the Senate. However, because of the Seventeenth Amendment to the Constitution, that no longer holds true. The government under the Constitution has always been general or central, but never federal.

The best way to discover the Constitution as ratified is to read the words of the men who wrote it and ratified it in 1787 and 1788. This work relies upon those words rather than the lofty and often deceptive interpretations written by historians who think they know what the Founders meant. Along with a virtual clause-by-clause discussion of the Constitution, the book also provides an extensive appendix containing quotations that provide context about particular points of interest and a list of proposed amendments that Madison eliminated in his final draft of the Bill of Rights. These are as important as the text itself. Ultimately, the Constitution should be read and understood the way the founding generation read and understood it in 1787 and 1788. Regardless of what men like Klein and Chernow think, that can be done.

Chapter 1

The Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Short of Thomas Jefferson’s famous lines from the Declaration of Independence, the Preamble to the Constitution is perhaps the most famous fifty-two words in American history. Every schoolchild is required to memorize it; every American knows at least the first seven words, and We the people of the United States . . . is cited in part or whole by Americans on a daily basis as a declaration of their role in the government. It is their government because the Constitution says so. But most Americans don’t know what the Preamble meant to the founding generation (or what it means to the Constitution), the different version that existed before the final draft of the Constitution was written, or the fact that it was vehemently opposed by various individuals from the founding generation during the State ratification process.

A preamble is a declaration of intent. It outlines the proposed document in broad strokes, but it has no legal value and is not a declaration of rights or liberties. So, while Americans hold the Preamble to the Constitution as sacred, and while it is a beautifully written and meaty fifty-two words, its overall value to the document, short of setting the stage, is limited.

In fact, most Americans don’t realize that the first drafts of the Constitution contained the following preamble, written by nationalist Charles Pinckney of South Carolina, for the free and independent states of America:

We the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.1

The Committee of Style, led by New Yorker Gouverneur Morris, changed the text of the Preamble and presented it to the Philadelphia Convention at large on 12 September 1787, only five days before the Constitution was signed. Morris condensed the various objectives for a new government that had been discussed in Philadelphia, and eliminated the roll-call of States, perhaps because Rhode Island did not send delegates to the Convention. No discussion ensued over Morris’s changes to the Preamble and historians have debated his intent.

Morris was generally a nationalist, but he recognized the sovereignty of the States—particularly when he favored the secession of the New England States in 1815—and advocated voting on the Constitution by State rather than by individual delegate on the final day of the Convention. Of course, the Preamble would be a subject of debate in the months and years after the Constitution was signed. These fifty-two words went to the heart of the debate over the Constitution: would the United States be a federal republic—that is, a confederation of sovereign States—or a consolidated nation? Some supported the language of the Preamble, others opposed it; James Madison chided those who sought to read more into it than was actually there.

Patrick Henry, the most dominant political figure in the State of Virginia and possibly the best orator in the United States, asked in the Virginia Ratifying Convention, "My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states."2 Robert Whitehill of Pennsylvania, a strong-willed backcountry Scotch-Irish opponent of the Constitution, determined that the Preamble left no doubt about the intentions of the Framers. We the People of the United States is a sentence that evidently shows the old foundation of the Union is destroyed, the principle of confederation excluded, and a new system of consolidated empire is set up upon the ruins of the present compact between the states.3 Samuel Adams, the famous Patriot from Massachusetts, wrote in 1787 that the Preamble pointed to one conclusion. I meet with a National Government, instead of a federal Union of Sovereign States. . . .4 And Brutus, possibly the most famous opponent of the Constitution, because of his detailed essays against it, wrote that it is not an union of states or bodies corporate; had this been the case the existence of the state governments, might have been secured. But it is a union of the people of the United States considered as one body, who are to ratify this constitution, if it is adopted.5

Proponents of the document did not understand the critique. James Wilson, the most vocal defender of the Constitution in Pennsylvania and maybe the United States, responded to several critics of the Preamble’s language in the Pennsylvania Ratifying Convention. "We the People—it is announced in their name, it is clothed with their authority, from whom all power originated and ultimately belong. Magna Carta is the grant of a king. This Constitution is the act of the people and what they have not expressly granted, they have retained."6 A Native of Virginia, probably Daniel Fisher, argued in 1788 that "the introduction, like a preamble to a law, is the key of the Constitution. Whenever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised, and ought to be resisted by the people"7(emphasis added). Edmund Randolph, the dashing lawyer and later governor of Virginia who presented Madison’s Virginia Plan in the Philadelphia Convention, emphasized, The Government is for the people; and the misfortune was, that the people had no agency in the Government before [under the Articles of Confederation].8 The Preamble, he said, made that clear. Chancellor Robert R. Livingston of New York, a member of the committee of five that drafted the Declaration of Independence and a very well-respected man in his State, thought that the language of the Preamble actually strengthened liberty and peace among the States.

It has pleased Heaven to afford the United States means for the attainment of this great object [peace], which it has with-held from other nations. They speak the same language, they profess the same religion; and, what is of infinitely more importance, they acknowledge the same great principle of government . . . that all power is derived from the people. They consider this State, and their general governments, as different deposits of power. In this view, it is of little moment to them whether that portion of it, which they must for their own happiness lodge in their rulers, be invested in the State Government only, or shared between them and the council of the Union. The rights they reserve are not diminished, and probably their liberty acquires an additional security from the division.9

Madison, however, had the final word on the controversy. Writing years after the ratification of the Constitution, he contended, The general terms or phrases used in the introductory propositions, and now a source of so much constructive ingenuity, were never meant to be inserted in their loose form in the text of the Constitution. Like resolutions preliminary to legal enactments it was understood by all, that they were to be reduced by proper limitations and specifications, into the form in which they were to be final and operative; as was actually done in the progress of the session.10 There it is. Madison believed the Preamble was nothing more than a preliminary or introductory propositions limited by the text of the document itself. Reading between the lines was contrary to its meaning.

The argument that Morris truncated the original preamble to avoid confusion should some States not ratify the Constitution holds weight. He manifestly did not intend for the Union to be a consolidated mass of one people—his public career argued against that point; as Edmund Randolph pointed out, Morris merely wanted to ensure, in contrast to the Articles of Confederation, that the people were explicitly recognized in the Constitution, nothing more, nothing less.

Ultimately, the Preamble echoed Jefferson’s language in the Declaration of Independence when he wrote that it is the right of the people to alter or abolish it [government], and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness. This sovereignty of the people to make and unmake governments was what Morris affirmed. It was also the understanding of the States that ratified the Constitution, and that, really, is the key point. As Madison consistently advocated in his private letters, the Constitution should be supported the way it was ratified: the meaning of the Constitution, he wrote, is to be found "in those of the State Conventions which gave it all the validity & authority it possesses"11 (emphasis added). The Preamble should be understood as an introduction to what the Founders, in their ratifying conventions, thought the federal government should be.

Chapter 2

The Legislative Branch