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POINTS TO REMEMBER - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


POINTS TO REMEMBER

1. After the Constitution was signed by the delegates to the Federal Convention in Philadelphia, it was submitted to the States for ratification. The approval of only nine States was needed to make the Constitution the supreme law of the land. The delegates to the State ratifying conventions were elected by the people, thereby placing the Constitution on a democratic foundation. The Americans were the first to establish popularly based constitutions.

2. The Anti-Federalists opposed the Constitution on a number of grounds, but their chief objection was that it gave too much power to the Federal government and encouraged consolidation.

3. The authors of The Federalist attempted to explain and defend the Constitution in a series of 85 essays that were published in New York newspapers and later distributed throughout the country. They agreed that the new government would be powerful, but denied that it would be too powerful or that it would be a threat to liberty and the independence of the States.

4. The federal system of government established by the new Constitution was a uniquely American contribution to the science of government. It was rooted not in abstract political theory but in compromise and the practical necessities of the time. It is unlikely that the Constitution would have been acceptable to the American people had the Framers stripped the States of their reserved powers and created a unitary form of government.

5. One of the major concerns expressed by the Anti-Federalists was the issue of local control of civil liberties. They insisted that the Federal government would be so powerful that it would trample on the rights of the people and the rights of the States. To correct this problem, they demanded that a Bill of Rights be added to the Constitution. The Federalists, on the other hand, argued that a bill of rights was unnecessary because no power had been delegated to the Federal government to regulate such matters as freedom of the press and religion in the first place. A Bill of Rights was nevertheless added to the Constitution in 1791.

6. The addition of the Bill of Rights was the chief accomplishment of the Anti-Federalists. It strengthened and affirmed the federal principle of the Constitution. It not only assured the people that the Federal government was prohibited from abridging their liberties, but it also assured the States that they would retain jurisdiction and control over most civil liberties disputes between the States and their citizens.

7. The American Constitution seeks to prevent rule by tyrannical majorities as well as tyrannical minorities. But in a democratic republic the problem of majority factions is usually the more difficult to resolve. In Federalist No. 10, James Madison explained that by establishing an extended, commercial, federal and democratic republic, the Framers sought to reduce and possibly eliminate the threat of government by tyrannical majorities. The system of representation established by the Framers is the key to an understanding of how the Constitution deals with this basic problem of democratic government.

8. The Bill of Rights is not a complete catalogue of all the rights that are enjoyed by the American people and are protected by the Constitution. As provided by the Ninth and Tenth Amendments, the people and the States retain jurisdiction over additional rights under their State constitutions and bills of rights, which the Federal government may not touch.

Signed on September 17, 1787, by all the delegates who still remained at Philadelphia—except Gerry of Massachusetts and Randolph and Mason of Virginia—the text of the proposed Constitution was dispatched to New York City, where the last Congress under the Confederation was meeting. Then there commenced a struggle which would last for nearly a year to persuade the several States to accept the new Constitution. It would be a conflict with much shouting but no shooting.

The Great Convention, in submitting the proposed Constitution to the Congress of the Confederation, had requested that Congress send copies to the State legislatures. Those legislatures, in turn, were asked to issue instructions for the election of delegates to a convention to be held in each State. At these State conventions, the new Constitution would be debated. Each State convention would then ratify or reject the document. If nine states ratified the Constitution, it would take effect as the country’s organic law, supplanting the Articles of Confederation.

This method of adoption, it is important to remember, dates back to some of the State constitutions approved during the revolutionary period. It was intended to give the Constitution a popular base and to establish the new government on a firm democratic foundation. This foundation was lacking under the Articles of Confederation because our first national constitution was never submitted to the people for approval. Although Article VII of the new Constitution specified ratification by the States, the voters in each State elected the delegates who served in the State ratifying conventions. Hence the Constitution of 1787 was ratified by the people and by the States, or by “the people in the States” (rather than simply by the States or by the people at large). In sharp contrast, new constitutions and constitutional amendments in parliamentary systems of government are often written and approved by the parliament, and the consent of the electorate is not sought or required. The Americans were the first to establish popularly based constitutions.

From a legal standpoint, the American Constitution, at its inception, was a “revolutionary” document. It may be doubted whether the Constitution would have prevailed had it not been approved by the American people. The delegates to the Federal Convention, as we noted earlier, were representatives of the States and were acting in response to a call by the Congress of the Confederation. They were sent to Philadelphia not to write a new Constitution but to “revise” the Articles of Confederation. No change in the Articles was permitted unless all thirteen State legislatures agreed. Nevertheless, the delegates to the Federal Convention boldly exceeded their mandate by proposing an entirely new government that was to go into effect when only nine State conventions ratified the Constitution.

The two factions on opposite sides in this contest over the adoption of the Constitution are called the Federalists and the Anti-Federalists. These terms are mildly confusing, for at the time when the Great Convention’s deliberations had begun, the men friendly to the Articles of Confederation thought of themselves as favoring a federal system of government; by comparison, the advocates of a new constitution who intended to create a stronger national union are often called “Nationalists” by historians of the period. A few years later, these two divisions of opinion would harden into regular political parties called, respectively, Federalists (friendly toward a strong central government) and Republicans or Democratic-Republicans (many of whom formerly were Anti-Federalists).

But by September 1787, the Nationalists were calling themselves Federalists. Like the Anti-Federalists, they sought to persuade the voters through speeches, pamphlets, newspaper articles, and personal correspondence. As we noted earlier, three of their leading men—James Madison, Alexander Hamilton, and John Jay—wrote eighty-five essays for New York newspapers under the pseudonym of “Publius.” These essays, known as The Federalist, endeavored to explain and defend each provision of the Constitution and its underlying principles of government. To this day, The Federalist is regarded as one of the most insightful sources of understanding about the nature and purposes of the American political system. Anti-Federalist literature, previously uncollected and much ignored, is now available to the modern reader. Herbert Storing’s The Complete Anti-Federalist (7 vols., 1981) is the most complete and up-to-date version.

Much knowledge about the Constitution is also to be gained by reading the debates in the several State ratifying Conventions. When the Philadelphia Convention adjourned on September 17, 1787, many of the delegates returned to their native States to defend the new Constitution and urge its adoption. Some, such as James Wilson of Pennsylvania, were elected to their State’s convention and thus entered into a second round of deliberations on the Constitution. These ratification debates contain a rich source of both Federalist and Anti-Federalist thought on the Constitution. They were later collected and published as a four-volume work by Jonathan Elliot under the title of The Debates in the Several State Conventions on the Adoption of the Federal Constitution (1830). James Madison, it is interesting to note, was the last surviving member of the Federal Convention when he passed away in 1836. The comprehensive notes that he took at the Federal Convention were published after his death, and Elliot added them as a fifth volume to his Debates in 1840. Taken together, these works—Madison’s Notes, Elliot’s Debates, The Federalist, and Storing’s The Complete Anti-Federalist, represent the principal, though by no means the entire, source material of original documents on the framing and adoption of the United States Constitution.