VII
The American Revolution, like all revolutions, could not fulfill all the high hopes of its leaders. Within a decade after Independence was declared, many Revolutionary leaders had come to doubt the way America was going. Not only were they aware that the Confederation was too weak to accomplish its tasks, both at home and abroad, but they were also having second thoughts about the immense power that had been given to the popular state legislatures in 1776. In the mid-1780s frustration with piecemeal changes in the Articles of Confederation came together with mounting concern over examples of legislative tyranny and other political and social conditions in the states to produce a powerful momentum for constitutional change. The result was the federal Constitution of 1787.
This new national Constitution, which replaced the Articles of Confederation, not only limited the authority of the states but also created an unprecedented concentration of power at the federal level. Many Americans could only conclude that the new Constitution represented as radical a change as the Revolution itself. At last, in the eyes of some, the inauguration of a new federal government promised the harmony and stability that would allow America to become a great and glorious nation.
For some Americans the 1780s had become a critical period, a point at which the Revolution and the entire experiment in republicanism seemed to be in danger. The very success of the Revolution in opening up opportunities for prosperity to new and lower levels of the population helped to create a sense of crisis among certain members of the Revolutionary elite.
Too many ordinary people, some felt, were distorting republican equality, defying legitimate authority, and blurring those natural distinctions that all gentlemen, even republican gentlemen, thought essential for social order. Everywhere, even among the sturdy independent yeomen—Jefferson’s “chosen people of God”—private interests, selfishness, and moneymaking seemed to be destroying social affection and public spirit—the very qualities of virtue that were required of republican citizens. The passing of unjust and confusing laws by the state legislatures—“democratic despotism,” it was called—suggested that the people were too self-interested to be good republicans. Some therefore feared that America was doomed to share the fate that had befallen the ancient republics, Britain, and other corrupt nations. Americans, concluded Governor William Livingston of New Jersey, in a common elitist reckoning of 1787, “do not exhibit the virtue that is necessary to support a republican government.”
The Revolution had radically democratized the new state legislatures by increasing the number of their members and altering their social character. Men of more humble and more rural origins and less educated than those who had sat in the colonial assemblies now became representatives. In New Hampshire, for example, in 1765 the colonial assembly had contained only thirty-four members, almost all well-to-do gentlemen from the coastal region around Portsmouth. By 1786 the state’s House of Representatives had increased to eighty-eight members. Most of these were ordinary farmers or men of moderate wealth, and many were from the western areas of the state. In other states the change was less dramatic but no less significant.
The need to bring the state governments closer to more ordinary people was also reflected in the shifts of most of the state capitals from their colonial locations on the eastern coastline to new sites in the interior—from Portsmouth to Concord in New Hampshire, from New York City to Albany in New York, from the dual colonial capitals Burlington and Perth Amboy to Trenton in New Jersey, from Philadelphia to Lancaster in Pennsylvania, from Williamsburg to Richmond in Virginia, from New Bern to Raleigh in North Carolina, from Charleston to Columbia in South Carolina, and from Savannah to Augusta in Georgia.
Everywhere electioneering and the open competition for office increased, along with demands for greater public access to governmental activities. The number of contested elections and the turnover of legislative seats multiplied. Assembly proceedings were opened to the public, and a growing number of newspapers (which now included dailies) began to report legislative debates. Self-appointed leaders, speaking for newly aroused groups and localities, took advantage of the enlarged suffrage and the annual elections of the legislatures (a radical innovation in most states) to seek membership in the assemblies. New petty entrepreneurs like Abraham Yates, a part-time lawyer and shoemaker from Albany, and William Findley, a Scotch-Irish ex-weaver from western Pennsylvania, bypassed the traditional hierarchy and vaulted into political leadership in the states.
Under these circumstances many of the state legislatures could scarcely fulfill what many Revolutionaries in 1776 had assumed was their republican responsibility to promote the general good. In every state, decisions had to be made about the loyalists and their confiscated property, the distribution of taxes among the citizens, and the economy. Yet with the general political instability, the common welfare in the various states was increasingly difficult to define. By the 1780s James Madison concluded that “a spirit of locality” in the state legislatures was destroying “the aggregate interests of the community.” This localist spirit, he thought, was a consequence of having small districts or towns elect members of the state legislatures. Each representative, said Ezra Stiles, president of Yale College, was concerned only with the special interests of his electors. Whenever a bill is read in the legislature, “every one instantly thinks how it will affect his constituents.”
This kind of narrow-minded politics was not new to America. But the proliferation of economic and social interests in the post-Revolutionary years, along with the greater sensitivity of the enlarged elected popular assemblies to conflicting demands of these interests, now dramatically increased the intensity and importance of such parochial-interest politics. Debtor farmers urged low taxes, the staying of court actions to recover debts, and the printing of paper money. Merchants and creditors called for high taxes on land, the protection of private contracts, and the encouragement of foreign trade. Artisans pleaded for price regulation of agricultural products, the abolition of mercantile monopolies, and tariff protection against imported manufactures. And entrepreneurs everywhere petitioned for legal privileges and corporate grants.
All this political scrambling among contending interests made lawmaking in the states seem chaotic. Laws, as the Vermont Council of Censors said in 1786 in a common complaint, were “altered—realtered—made better—made worse; and kept in such a fluctuating position, that persons in civil commission scarcely know what is law.” As James Madison pointed out, more laws were enacted by the states in the decade following independence than in the entire colonial period. Many of them were simply private acts for individuals or resolves redressing minor grievances. But every effort of the legislatures to respond to the excited pleas and pressures of the various interests alienated as many as it satisfied and brought lawmaking itself into contempt.
By the mid-1780s many American leaders had come to believe that the state legislatures, not the governors, were the political authority to be most feared. Not only were some of the legislatures violating the individual rights of property-owners through their excessive printing of paper money and their various acts on behalf of debtors, but in all the states the assemblies also pushed beyond the generous grants of legislative authority of the 1776 Revolutionary constitutions and were absorbing numerous executive and judicial duties—directing military operations, for example, and setting aside court judgments. It began to seem that the once benign legislative power was no more trustworthy than the detested royal power had been. Legislators were supposedly the representatives of the people who annually elected them. But “173 despots would surely be as oppressive as one,” wrote Jefferson in 1785 in his Notes on Virginia. “An elective despotism was not the government we fought for.”
These growing fears of tyrannical legislatures forced many leaders to have second thoughts about their popularly elected assemblies. Indeed, the ink was scarcely dry on the Revolutionary state constitutions before some were suggesting that they needed to be revised. Beginning with the New York constitution of 1777 and proceeding through the constitutions of Massachusetts in 1780 and New Hampshire in 1784, constitution-makers now sought a very different distribution of the powers of government from the distribution made in 1776.
Instead of draining all power from the governors and placing it in the legislatures, particularly in the lower houses, as the early state constitutions had done, these later constitutions strengthened the executives, senates, and judiciaries. The Massachusetts constitution of 1780 especially seemed to many to have recaptured some of the best characteristics of the English constitutional balance, which had been forgotten during the popular enthusiasm of 1776. The new Massachusetts governor, with a fixed salary and elected directly by the people, had more of the independence and some of the powers of the old royal governors, including those of appointing to offices and vetoing legislation.
With the Massachusetts constitution as a model, other constitutional reformers, including Madison and Jefferson in Virginia and James Wilson and Robert Morris in Pennsylvania, worked to revise their own state constitutions. The popular legislatures were reduced in size and their authority curbed. Senates or upper houses were instituted where they did not exist, as in Pennsylvania, Georgia, and Vermont. In states where senates did exist, they were made more stable through longer terms and higher property qualifications for their members. The governors were freed of their dependence on the legislatures and given the central responsibility for government. And judges became independent guardians of the constitutions. By 1790, Pennsylvania, South Carolina, and Georgia had reformed their constitutions along these conservative lines. New Hampshire, Delaware, and Vermont soon followed in the early 1790s.
At the same time that political leaders were attempting to restrengthen the authority of governors, senates, and judges, they also tried to limit the power of the legislatures by appealing to the fundamental law that was presumably embodied in the states’ written constitutions. Since many of the constitutions had been created by simple legislative act, it was not easy to distinguish between fundamental and ordinary law.
At first, several of the states had grappled with various devices to distinguish between their fundamental constitutions and ordinary legislation. Some simply declared their constitutions to be fundamental; others required a special majority or successive acts of the legislature for amending the constitution. But none of these measures proved effective against repeated legislative encroachments.
In attempting to solve this problem Americans gradually came to believe that if a constitution was to be truly immune from legislative tampering, it would have to be created, as Jefferson said in 1785, “by a power superior to that of the ordinary legislature.” For a solution, Americans fell back on the institution of the convention. In 1775–76 the convention had been merely an ad hoc legislative meeting, lacking legal sanction but made necessary by the crown’s refusal to call together the regular representatives of the people. Now, however, the convention became a special alternative institution representing the people and having the exclusive authority to write or amend a constitution. When Massachusetts and New Hampshire came to write new constitutions in the late 1770s and early 1780s, the proper pattern of constitution-making and constitution-altering had become clear. Constitutions were formed by specially elected conventions and then placed before the people for ratification.
With this idea of a constitution as fundamental law immune from legislative encroachment firmly in hand, some state judges during the 1780s began cautiously moving in isolated cases to impose restraints on what the assemblies were enacting as law. In effect, they said to the legislatures, as George Wythe, judge of the Virginia Supreme Court, did in 1782, “Here is the limit of your authority; and, hither, shall you go, but no further.” These were the hesitant beginnings of what eventually would come to be called judicial review. Many leaders, however, were as yet unwilling to allow appointed judges to set aside laws that had been made by the people represented in democratically elected legislatures. “This,” said a perplexed James Madison in 1788, “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.”
As vigorously as all these constitutional reforms of the states were urged and adopted in the 1780s, however, they never seemed sufficient. By the mid-1780s many reformers were thinking of shifting the arena of constitutional change from the states to the nation and were looking to a modification of the structure of the central government as the best and perhaps only answer to America’s political and social problems.
Even before the Articles of Confederation were ratified in 1781, the experiences of the war had exposed the weakness of the Congress and had encouraged some Americans to think about making changes in the central government. By 1780 the war was dragging on longer than anyone had expected and the skyrocketing inflation of the paper money used to finance it was unsettling commerce and business. With congressional delegates barred from serving more than three years in any six-year period, leadership in the Confederation was fluctuating and confused. The states ignored congressional resolutions and refused to supply their allotted contributions to the central government. With no ability to raise money, the Congress simply ceased paying interest on the public debt. The Continental Army smoldered with resentment at the lack of pay and began falling apart through desertions and even outbreaks of mutiny. All these circumstances forced mercantile and creditor interests, especially those centered in the mid-Atlantic states, to seek to add to the powers of the Congress. Reformers tried to strengthen the Congress by broadly interpreting the Articles, by directly amending them (which required the consent of all the states), and even by threatening the states with military force.
A shift in congressional leadership in the early eighties allowed these concerned national groups to exert greater influence. Older popular radicals like Richard Henry Lee and Arthur Lee of Virginia and Samuel Adams of Massachusetts were replaced by such younger men as James Madison of Virginia and Alexander Hamilton of New York, who were more interested in authority and stability than in popular democracy. Disillusioned by the ineffectiveness of the Confederation, these nationalists in the Congress set about reversing the localist and power-weakening emphasis of the Revolution. They strengthened the regular army at the expense of the militia and promised pensions to the Continental Army officers. They reorganized the departments of war, foreign affairs, and finance in the Congress and replaced the committees that had been running them with individuals. The key individual in the nationalists’ program was Robert Morris, a wealthy Philadelphia merchant who was made superintendent of finance and virtual head of the Confederation in 1781. In order to attach financial and commercial groups to the central government, Morris undertook to stabilize the economy and fund the national debt. He persuaded Congress to recommend to the states that paper-money laws be repealed and to require that the states’ contributions to the general expenses be paid in gold or silver. And he sought to establish a national bank and to make federal bonds more secure for investors.
Carrying out this nationalist program depended upon amending the Articles so as to grant the Confederation the power to levy a 5 percent duty on imports. Once the Congress had adequate revenues independent of the states, the Confederation could pay its debts and would become more attractive to prospective buyers of its bonds. Although Morris was able to induce Congress to charter the Bank of North America, the rest of the nationalists’ economic proposals narrowly failed. Not only did the states ultimately refuse to approve the impost amendment, but many were slow in supplying the money that had been requisitioned by Congress. Nor was Congress able to get even a restricted authority to regulate commerce.
After the allied victory at Yorktown in October 1781 and the opening of peace negotiations with Great Britain, interest in the Congress declined and some individuals became desperate. The prospect of Congress’s demobilizing the army without fulfilling its promises of back pay and pensions created a crisis that brought the United States as close to a military coup d’état as it has ever been. In March 1783, the officers of Washington’s army encamped at Newburgh on the Hudson River issued an address to the Congress concerning their pay. They actually plotted some sort of military action against the Confederation. Only when Washington personally intervened and refused to support a movement that was designed, he said, “to open the floodgates of civil discord, and deluge our rising empire in blood” was the crisis averted.
News of the peace in 1783 shattered much of the unionist sentiment that had existed during the war. By December 1783 the Congress, in Jefferson’s opinion, had lost much of its usefulness. “The constant session of Congress can not be necessary in time of peace,” he said. After clearing up the most urgent business, the delegates should “separate and return to our respective states, leaving only a Committee of the states,” and thus “destroy the strange idea of their being a permanent body.”
Congressional power, which had been substantial during the war years, now began to disintegrate. The delegates increasingly complained how difficult it was even to gather a quorum. The Congress could not even agree on a permanent home: It wandered from Philadelphia to Princeton to Annapolis to Trenton and finally to New York City. The states reasserted their authority and began taking over the payment of the federal debt that many had earlier hoped to make the cement of union. By 1786 the states had converted nearly one third of the federal securities into state bonds, thus creating a vested interest among public creditors in the sovereignty of the individual states. Under these circumstances the influence of those, as Hamilton called them, “who think continentally” rapidly declined, and the chances of amending the Confederation piecemeal declined with them. The only hope of reform now seemed to lie in some sort of convention of all the states.
In Europe the reputation of the United States dwindled as rapidly as did its credit. The Dutch and French would lend money only at extraordinary rates of interest. Since American ships now lacked the protection of the British flag, many of them were seized by corsairs from the Muslim states of North Africa and their crews were sold into slavery. The Congress had no money to pay the necessary tribute and ransoms to these Barbary pirates.
Amid a world of hostile monarchical empires the new republican confederacy was even hard-pressed to maintain its territorial integrity. Britain refused to send a minister to the United States and ignored its treaty obligations to evacuate its military posts in the Northwest, claiming that the United States had not honored its own commitments. The treaty of peace had stipulated that the Confederation would recommend to the states that loyalist property confiscated during the Revolution be restored to its owners and that neither side would make laws obstructing the recovery of prewar debts. When the states flouted these treaty obligations, the impotent Confederation could do nothing.
Britain was known to be plotting with the Indians and encouraging separatist movements in the Northwest and in the Vermont borderlands, and Spain was doing the same in the Southwest. Spain in fact refused to recognize American claims to the territory between Florida and the Ohio River. In 1784 in an effort to bring American settlers moving into Kentucky and Tennessee under its control, Spain closed the Mississippi to American trade. Many westerners were ready to deal with any government that could ensure access to the sea for their agricultural produce. As Washington noted in 1784, the western settlers were “on a pivot. The touch of a feather would turn them any way.”
In 1785–86, John Jay, a New York aristocrat and the secretary of foreign affairs, negotiated a treaty with the Spanish minister to the United States, Diego de Gardoqui. By the terms of this agreement Spain was opened to American trade in return for America’s renunciation of its right to navigate the Mississippi for several decades. Out of fear of being denied an outlet to the sea in the West, the southern states prevented the necessary nine-state majority in the Congress from agreeing to the treaty. But the desire of a majority of seven states to sacrifice western interests for the sake of northern merchants aroused long-existing sectional jealousies and threatened to shatter the Union.
Despite the efforts of the diplomatic commission of Jefferson, Franklin, and Adams to negotiate liberal commercial treaties, the mercantilist empires of the major European nations remained generally closed to the new republic in the 1780s. The French were unwilling to take as much American produce as had been expected, and Britain effectively barred competitive American goods from its markets while recapturing American consumer markets for its own goods. The Confederation lacked the authority to retaliate with its own trade regulations, and several attempts to grant the Congress a restricted power over commerce were lost amid state and sectional jealousies. The Confederation Congress watched helplessly as the separate states attempted to pass ineffectual navigation acts of their own. By the mid-1780s, for example, Connecticut was laying heavier duties on goods from Massachusetts than on those from Great Britain.
In the end, the Confederation’s inability to regulate commerce finally precipitated reform of the Articles. Jefferson, Madison, and other leaders with agrarian interests wanted American farmers free to sell their surplus crops abroad. They feared that if they were prohibited from doing so the farmers would sink into lethargy and lose their industriousness. More important, if the United States did not sell its agricultural produce in Europe, it would be unable to pay for manufactured goods imported from Europe and would therefore be compelled to begin large-scale manufacturing for itself. These developments in turn would eventually destroy the farmer-citizenry on which republicanism was based and would create in America the same kind of corrupt, rank-conscious, and dependent society that existed in Europe. Thus the Confederation desperately needed commercial regulatory power in order to compel the European states to open their markets to American agricultural goods.