Framing the Constitution
Charles A. Beard
[Excerpted from Charles Beard's "Framing the
Constitution," in Peter Woll, ed., American Government: Readings
and Cases, 11th ed. (New York: Harper Collins, 1993]
In the following essay, which is adapted from The Supreme Court and
the Constitution (1912), Charles Beard presents evidence that the
framers of the Constitution were less interested in furthering
democratic principles than in protecting private property and the
interests of the wealthy class. Since this work was written over
eighty years ago, there are a few anachronisms you may want to keep in
mind. First, when Beard speaks of the "Confederacy," he is
referring to the government that existed under the Articles of
Confederation -- not to the Confederate states that seceded from the
Union during the Civil War. Also, it is important to remember that the
Senate was still not elected by popular vote when Beard was writing --
although that was changed in 1913 by the Seventeenth Amendment.
Finally, when Beard speaks of "republican" or "democratic"
tendencies, he is not referring to the Republican or Democratic
parties, but is instead using the words in their more generic sense.
...The reason and spirit of a law are to be understood only by an
inquiry into the circumstances of its enactment. The underlying
purposes of the Constitution, therefore, are to be revealed only by a
study of the conditions and events which led to formation and
adoption.
At the outset it must be remembered that there were two great parties
at the time of the adoption of the Constitution -- one laying emphasis
on strength and efficiency in government and the other on its popular
aspects. Quite naturally the men who led in stirring up the revolt
against Great Britain and in keeping the fighting temper of the
Revolutionaries at the proper heat were the boldest and most radical
thinkers -- men like Samuel Adams, Thomas Paine, Patrick Henry, and
Thomas Jefferson.
They were not, generally speaking, men of large property interests or
of much practical business experience. In a time of disorder, they
could consistently lay more stress upon personal liberty than upon
social control; and they pushed to the extreme limits those doctrines
of individual rights which had been evolved in England during the
struggles of the small landed proprietors and commercial classes
against royal prerogative, and which corresponded to the economic
conditions prevailing in America at the close of the eighteenth
century. They associated strong government with monarchy, and came to
believe that the best political system was one which governed least. A
majority of the radicals viewed all government, especially if highly
centralized, as a species of evil, tolerable only because necessary
and always to be kept down to an irreducible minimum by a jealous
vigilance.
Jefferson put the doctrine in concrete form when he declared that he
preferred newspapers without government to government without
newspapers. The Declaration of Independence, the first state
Constitutions, and the Articles of Confederation bore the impress of
this philosophy. In their anxiety to defend the individual against all
federal interference and to preserve to the states a large sphere of
local autonomy, these Revolutionists had set up a system too weak to
accomplish the accepted objects of government; namely, national
defense, the protection of property, and the advancement of commerce.
They were not unaware of the character of their handiwork, but they
believed with Jefferson that "man was a rational animal endowed
by nature with rights and with an innate sense of justice and that he
could be restrained from wrong and protected in right by moderate
powers confided to persons of his own choice." Occasional riots
and disorders, they held, were preferable to too much government.
The new American political system based on these doctrines had
scarcely gone into effect before it began to incur opposition from
many sources. The close of the Revolutionary struggle removed the
prime cause for radical agitation and brought a new group of thinkers
into prominence. When independence had been gained, the practical work
to be done was the maintenance of social order, the payment of the
public debt, the provision of a sound financial system, and the
establishment of conditions favorable to the development of the
economic resources of the new country. The men who were principally
concerned in this work of peaceful enterprise were not the
philosophers, but men of business and property and the holders of
public securities. For the most part, they had had no quarrel with the
system of class rule and the strong centralization of government which
had existed in England. It was on the question of policy, not of
governmental structure, that they had broken with the British
authorities. By no means all of them, in fact, had even resisted the
policy of the mother country, for within the ranks of the
conservatives were large numbers of Loyalists who had remained in
America, and, as was to have been expected, cherished a bitter feeling
against the Revolutionists, especially the radical section which had
been boldest in denouncing the English system root and branch. In
other words, after the heat and excitement of the War of Independence
were over and the new government, state and national, was tested by
the ordinary experiences of traders, financiers, and manufacturers, it
was found inadequate, and these groups accordingly grew more and more
determined to reconstruct the political system in such a fashion as to
make it subserve their permanent interests.
Under the state constitutions and the Articles of Confederation
established during the Revolution, every powerful economic class in
the nation suffered either immediate losses or from impediments placed
in the way of the development of their enterprises. The holders of the
securities of the [government established by the Articles of
Confederation] did not receive the interest on their loans. Those who
owned Western lands or looked with longing eyes upon the rich
opportunities for speculation there chaffed at the weakness of the
government and its delays in establishing order on the frontiers.
Traders and commercial men found their plans for commerce on a
national scale impeded by local interference with interstate commerce.
The currency of the states and the nation was hopelessly muddled.
Creditors everywhere were angry about the depreciated paper money
which the agrarians had made and were attempting to force upon those
from whom they had borrowed specie. In short, it was a war between
business and populism. Under the Articles of Confederation, populism
had a free hand, for majorities in the state legislatures were
omnipotent. Anyone who reads the economic history of the time will see
why the solid conservative interests of the country were weary of talk
about the "rights of the people" and bent upon establishing
firm guarantees for the rights of property.
The Congress of the Confederation was not long in discovering the
true character of the futile authority which the Articles had
conferred upon it. The necessity for new sources of revenue became
apparent even while the struggle for independence was yet undecided,
and, in 1871, Congress carried a resolution to the effect that it
should be authorized to lay a duty of five percent on certain goods.
This moderate proposition was defeated because Rhode Island rejected
it on the grounds that "she regarded it the most precious jewel
of sovereignty that no state shall be called upon to open its purse
but by the authority of the state and by her own officers." Two
years later, Congress prepared another amendment to the Articles
providing for certain import duties, the receipts from which,
collected by state officers, were to be applied to the payment of the
public debt; but three years after the introduction of the measure,
four states, including New York, still held out against its
ratification, and the project was allowed to drop. At last, in 1786,
Congress in a resolution declared that the requisitions for the last
eight years had been so irregular in their operation, so uncertain in
their collection, and so evidently unproductive that a reliance on
them in the future would be no less dishonorable to the understandings
of those who entertained it than it would be dangerous to the welfare
and peace of the Union. Congress, thereupon, solemnly added that it
had become its duty "to declare most explicitly that the crisis
had arrived when the people of the United States, by whose will and
for whose benefit the federal government was instituted, must decide
whether they will support their rank as a nation by maintaining the
public faith at home and abroad, or rather for the want of a timely
exertion in establishing a general review and thereby giving strength
to the Confederacy, they will hazard not only the existence of the
Union but those great and invaluable privileges for which they have so
arduously and so honorably contended."
In fact, the Articles of Confederation had hardly gone into effect
before the leading citizens also began to feel that the powers of
Congress were wholly inadequate. In 1780, even before their adoption,
Alexander Hamilton proposed a general convention to frame a new
constitution, and from that time forward he labored with remarkable
zeal and wisdom to extend and popularize the idea of a strong national
government. Two years later, the Assembly of the State of New York
recommended a convention to revise the Articles and increase the power
of the Congress. In 1783, Washington, in a circular letter to the
governors, urged that it was indispensable to the happiness of the
individual states that there should be lodged somewhere a supreme
power to regulate and govern the general concerns of the
confederation. Shortly afterward (1785), Governor Bowdoin, of
Massachusetts, suggested to his state legislature the advisability of
calling a national assembly to settle upon and define the powers of
Congress; and the legislature resolved that the government under the
Articles of Confederation was inadequate and should be reformed; but
the resolution was never laid before Congress.
In January, 1786, Virginia invited all the other states to send
delegates to a convention at Annapolis to consider the question of
duties on imports and the commerce in general. When this convention
assembled in 1786, delegates from only five states were present, and
they were disheartened at the limitations on their powers and the lack
of interest the other states had shown in the project. With
characteristic foresight, however, Alexander Hamilton seized the
occasion to secure the adoption of a recommendation advising the
states to choose representatives for another convention to meet in
Philadelphia the following year "to consider the Articles of
Confederation and to propose such changes therein as might render them
adequate to the exigencies of the union." This recommendation was
cautiously worded, for Hamilton did not want to raise any unnecessary
alarm. He doubtless believed that a complete revolution in the old
system was desirable, but he knew that, in the existing state of
popular temper, it was not expedient to announce his complete program.
Accordingly, no general reconstruction of the political system was
suggested; the Articles of Confederation were merely to be "revised";
and the amendments were to be approved by the state legislatures as
provided by that instrument.
The proposal of the Annapolis convention was transmitted to the state
legislatures and laid before Congress. Congress thereupon resolved in
February, 1787, that a convention should be held for the sole and
express purpose of revising the Articles of Confederation and
reporting to itself and the legislatures of the several states such
alterations and provisions as would when agreed to by Congress and
confirmed by the states render the federal constitution adequate to
the exigencies of government and the preservation of the union.
In pursuance of this call, delegates to the new convention were
chosen by the legislatures of the states or by the governors in
conformity to authority conferred by the legislative assemblies. The
delegates were given instructions of a general nature by their
respective states, none of which, apparently, contemplated any very
far-reaching changes. In fact, almost all of them expressly limited
their representative to a mere revision of the Articles of
Confederation. For example, Connecticut authorized her delegates to
represent and confer for the purpose mentioned in the resolution of
Congress and to discuss such measures "agreeable to the general
principles of Republican government" as they should think proper
to render the Union adequate. Delaware, however, went so far as to
provide that none of the proposed alterations should extend to the
fifth part of the Articles of Confederation guaranteeing that each
state should be entitled to one vote.
It was a truly remarkable assembly of men that gathered in
Philadelphia on May 17, 1787, to undertake the work of reconstructing
the American system of government. It is not merely patriotic pride
that compels one to assert that never in the history of assemblies has
there been a convention of men richer in political experience and
practical knowledge, or endowed with a profounder insight into the
springs of human action and the intimate essence of government. It is
indeed an astounding fact that at one time so many men skilled in
statecraft could be found on the very frontiers of civilization among
a population numbering about four million whites. It is no less a
cause for admiration that their instrument of government should have
survived the trials and crises of a century that saw the wreck of more
than a score of paper constitutions.[] All the members had had a
practical training in politics. Washington, as commander-in-chief of
the Revolutionary forces, had learned well the lessons and problems of
war, and mastered successfully the no less difficult problems of
administration. The two Morrises had distinguished themselves in
grappling with financial questions as trying and perplexing as any
which statesmen had ever been compelled to face. Seven of the
delegates had gained political wisdom as governors of their native
states; and no less than twenty-eight had served in Congress, either
during the Revolution or under the Articles of Confederation. These
were men trained in the law, versed in finance, skilled in
administration, and learned in the political philosophy of their own
and earlier times. Moreover, they were men destined to continue public
service under the government which they had met to construct --
Presidents, Vice-Presidents, heads of departments, Justices of the
Supreme Court were in that imposing body. ...
The makers of the Constitution represented the solid, conservative,
commercial and financial interests of the country -- not the interests
which denounced and proscribed judges in Rhode Island, New Jersey, and
North Carolina, and stoned their houses in New York. The conservative
interests, made desperate by the imbecilities of the Confederation and
harried by state legislatures, roused themselves from the lethargy,
drew together in a mighty effort to establish a government that would
be strong enough to pay the national debt, regulate interstate and
foreign commerce, provide for national defense, prevent fluctuations
in the currency created by paper emissions, and control the
propensities of legislative majorities to attack private rights...The
radicals, however, like Patrick Henry, Jefferson, and Samuel Adams,
were conspicuous by their absence from the Convention.
The Convention was convened to frame a government that would meet the
practical issues that had arisen under the Articles of Confederation.
The objections they entertained to direct popular government, and they
were undoubtedly many, were based upon their experience with popular
assemblies during the immediately preceding years. With many of the
plain lessons of history before them, they naturally feared that the
rights and privileges of the minority would be insecure if the
principle of majority rule was definitely adopted and provisions made
for its exercise. Furthermore, it will be remembered that up to that
time the right of all men, as men, to share in the government had
never been recognized in practice. Everywhere in Europe the government
was in the hands of a ruling monarch or at best a ruling class;
everywhere the mass of the people had been regarded principally as an
arms-bearing and tax-paying multitude, uneducated, and with little
hope or capacity for advancement. Two years were to elapse after the
meeting of the grave assembly at Philadelphia before the
transformation of the Estates General into the National Convention in
France opened the floodgates of revolutionary ideas on human rights
before whose rising tide old landmarks of government are still being
submerged. It is small wonder, therefore, that, under the
circumstances, many members of that august body held popular
government in slight esteem and took the people into consideration
only as far as it was imperative "to inspire them with the
necessary confidence," as Mr. Gerry [one of the framers of the
Constitution] frankly put it.
Indeed, every page of the laconic record of the proceedings of the
convention, preserved to posterity by Mr. Madison, shows conclusively
that the members of that assembly were not seeking to realize any fine
notions about democracy and equality, but were striving with all the
resources of political wisdom at their command to set up a system of
government that would be stable and efficient, safeguarded on the one
hand against the possibilities of despotism and on the other against
the onslaught of majorities. In the mind of Mr. Gerry, the evils they
had experienced flowed "from the excess of democracy," and
he confessed that while he was still republican, he "had been
taught by experience the danger of the levelling spirit." Mr.
Randolph, in offering to the consideration of the convention his plan
of government, observed "that the general object was to provide a
cure for the evils under which the United States labored; that, in
tracing these evils to their origin, every man had found it in the
turbulence and follies of democracy; that some check therefore was to
be sought for against this tendency of our governments; and that a
good Senate seemed most likely to answer the purpose." Mr.
Hamilton, in advocating a life term for Senators, urged that "all
communities divide themselves into the few and the many. The first are
the rich and well born and the other the mass of the people who seldom
judge or determine right."
Governor Morris wanted to check the "precipitancy,
changeableness, and excess" of the representatives of the people
by the ability and virtue of men" of great and established
property -- aristocracy; men who from pride will support consistency
and permanency...Such an aristocratic body will keep down the
turbulence of democracy." While these extreme doctrines were
somewhat counterbalanced by the democratic principles of Mr. Wilson,
who urged that "the government ought to possess, not only first,
the force, but second, the mind or sense of the people at large,"
Madison doubtless summed up in a brief sentence the general opinion of
the convention when he said that to secure private rights against
minority factions, and at the same time to preserve the spirit and
form of popular government, was the great object to which their
inquiries had been directed.
They were anxious above everything else to safeguard the rights of
private property against any leveling tendencies on the part of the
propertyless masses. Governor Morris, in speaking on the problem of
apportioning representatives, correctly stated the sound historical
fact when he declared: "Life and liberty were generally said to
be of more value than property. An accurate view of the matter,
nevertheless, would prove that property was the main object of
society...If property, then was the main object of government,
certainly it ought to be one measure of the influence due to those who
were to be affected by the government." Mr. King also agreed that
"property was the primary object of society," and Mr.
Madison warned the convention that in framing a system which they
wished to last for ages they must not lose sight of the changes which
the ages would produce in the forms and distribution of property. In
advocating a long term in order to give independence and firmness to
the Senate, he described these impending changes: "An increase in
the population will of necessity increase the proportion of those who
will labor under all the hardships of life and secretly sigh for a
more equitable distribution of its blessings. These may in time
outnumber those who are placed above the feelings of indigence.
According to the equal laws of suffrage, the power will slide into the
hands of the former. No agrarian attempts have yet been made in this
country, but symptoms of a levelling spirit, as we have understood
have sufficiently appeared, in a certain quarter, to give notice of
the future danger." And again, in support of the argument for a
property qualification on voters, Madison urged: "In future
times, a great majority of the people will not only be without land,
but without any other sort of property. These will either combine,
under the influence of their common situation, -- in which case the
rights of property and the public liberty will not be secure in their
hands, -- or, what is more probable, they will become the tools of
opulence and ambition; in which case there will be equal danger on
another side." Various projects for setting up class rule by the
establishment of property qualifications for voters and officers were
advanced in the convention, but they were defeated....
The absence of such property qualifications is certainly not due to
any belief in Jefferson's free and equal doctrine. It is due rather to
the fact that the members of the convention could not agree on the
nature and amount of the qualifications. Naturally, a landed
qualification was suggested, but for obvious reasons it was rejected.
Although it was satisfactory to the landed gentry of the South, it did
not suit the financial, commercial, and manufacturing gentry of the
North. If it was high, the latter would be excluded; if it was low, it
would let in the populistic farmers who had already made so much
trouble in the state legislatures with paper-money schemes and other
devices for "relieving agriculture." One of the chief
reasons for calling the convention and framing the Constitution was to
promote commerce and industry and to protect personal property against
the depredations of Jefferson's noble freeholders. On the other hand,
a personal property qualification, high enough to please merchant
princes like Robert Morris or Nathaniel Gorham would shut out Southern
planters. Again, an alternative of land or personal property, high
enough to afford safeguards to large interests, would doubtless bring
about the rejection of the whole Constitution by the troublemaking
farmers who had to pass upon the question of ratification.
Nevertheless, by the system of checks and balances placed in the
government, the convention safeguarded the interests of property
against attacks by majorities. The House of Representatives, Mr.
Hamilton pointed out, "was so formed as to render it particularly
the guardian of the poorer orders of citizens," while the Senate
was to preserve the rights of property and the interests of the
minority against the demands of the majority. In the tenth number of
The Federalist, Mr. Madison argued in a philosophic vein in support of
the proposition that it was necessary to base the political system on
the actual conditions of "natural inequality." Uniformity of
interests throughout the state, he contended, was impossible on
account of the diversity in the faculties of men, from which the
rights of property originated; the protection of these faculties was
the first object of government; from the protection of different and
unequal faculties of acquiring property the possession of different
degrees and kinds of property immediately resulted; from the influence
of these on the sentiments and views of the respective proprietors
ensued a division of society into different interests and parties; the
unequal distribution of wealth inevitably led to a clash of interests
in which the majority was liable to carry out its policies at the
expense of the minority; hence, he added, in concluding this splendid
piece of logic, "the majority, having such coexistent passion or
interest, must be rendered by their number and local situation unable
to concert and carry into effect schemes of oppression"; and in
his opinion, it was the great merit of the newly framed Constitution
that it secured the rights of the minority against "the superior
force of an interested and overbearing majority."
This very system of checks and balances, which is undeniably the
essential element of the Constitution, is built upon the doctrine that
the popular branch of the government cannot be allowed full sway, and
least of all in the enactment of laws touching the rights of property.
The exclusion of the direct popular vote in the election of the
President; the creation, again by indirect election, of a Senate which
the framers hoped would represent the wealth and conservative
interests of the country, and the establishment of an independent
judiciary appointed by the President with the concurrence of the
Senate -- all these devices bear witness to the fact that the
underlying purpose of the Constitution was not the establishment of
popular government by means of parliamentary majorities.
Page after page of The Federalist is directed to that portion of the
electorate which was disgusted with the "mutability of public
councils." Writing on the presidential veto, Hamilton says: "The
propensity of the legislative department to intrude upon the rights
and absorb the powers of other departments has already been suggested
and repeated....It may perhaps be said that the power of preventing
bad laws included the power of preventing good ones; and may be used
to the one purpose as well as the other. But this objection will have
little weight with those who can properly estimate the mischiefs of
that inconstancy and mutability in the laws which form the greater
blemish in the character and genius of our governments. They will
consider every institution calculated to restrain the excess of
law-making and to keep things in the same state in which they happen
to be at any given period, as more likely to do good than harm;
because it is favorable to greater stability in the system of
legislation. The injury which may possibly be done by defeating a few
good laws will be amply compensated by the advantage of preventing a
number of bad ones."
When the framers of the Constitution had completed the remarkable
instrument which was to establish a national government capable of
discharging effectively certain great functions and checking the
propensities of popular legislatures to attack the rights of private
property, a formidable task remained before them -- the task of
securing the adoption of the new frame of government by states torn
with popular dissentions. They knew very well that the state
legislatures which had been so negligent in paying their quotas [of
money] under the Articles of Confederation and which had been so
jealous of their rights, would probably stick at ratifying such a
national instrument of government. Accordingly, they cast aside that
clause in the Articles requiring amendments to be ratified by the
legislatures of all of the states; and advised that the new
Constitution should be ratified by conventions in the several states
composed of delegates chosen by the voters. It was largely because the
framers of the Constitution knew the temper and class bias of the
state legislatures that they arranged that the new Constitution should
be ratified by conventions. They furthermore declared -- and this is
an fundamental matter -- that when the conventions of nine states had
ratified the Constitution the new government should go into effect so
far as those states were concerned. The chief reason for resorting to
ratifications by conventions is laid down by Hamilton in Federalist
22:
"It has not a little contributed to the infirmities of the
existing federal system that it never had a ratification by the
people. Resting on no better foundation that the consent of the
several legislatures, it has been exposed to frequent and intricate
questions concerning the validity of its powers; and has in some
instances given birth to the enormous doctrine of a right of
legislative repeal. Owing its ratification to the law of a state, it
has been contended that the same authority might repeal the law by
which it was ratified. However gross a heresy it may be to maintain
that a party to a compact has a right to revoke that compact, the
doctrine itself has respectable advocates. The possibility of a
question of this nature proves the necessity of laying the foundations
of our national government deeper than in the mere sanction of
delegated authority. The fabric of American empire ought to rest on
the solid basis of the consent of the people. The streams of national
power ought to flow immediately from that pure original foundation of
all legitimate authority."
Of course, the convention did not resort to the revolutionary policy
of transmitting the Constitution directly to the conventions of the
several states. It merely laid the finished instrument before the
Confederate Congress with the suggestion that it should be submitted
to "a convention of delegates chosen in each state by the people
thereof, under the recommendation of its legislature, for them assent
and ratification; and each convention assenting thereto and ratifying
the same should give notice thereof to the United States in Congress
assembled." The convention went on to suggest that when nine
states had ratified the Constitution, the Confederate Congress should
extinguish itself by making provisions for the elections necessary to
put the new government into effect....
After the new Constitution was published and transmitted to the
states, there began a long and bitter fight over ratification. A
veritable flood of pamphlet literature descended upon the country, and
a collection of these pamphlets by Hamilton, Madison, and Jay, brought
together under the title of The Federalist -- though clearly a piece
of campaign literature -- has remained a permanent part of the
contemporary sources on the Constitution and has been regarded by many
lawyers as a commentary second in value only to the decisions of the
Supreme Court. Within a year the champions of the new government found
themselves victorious, for on June 21, 1788, the ninth state, New
Hampshire, ratified the Constitution, and accordingly the new
government might go into effect as between the agreeing states. Within
a few weeks, the nationalist party in Virginia and New York succeeded
in winning these two states, and in spite of the fact that North
Carolina and Rhode Island had not yet ratified the Constitution,
Congress determined to put the instrument into effect in accordance
with the recommendations of the convention.
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