Power and Liberty: Constitutionalism in the American Revolution, Woods - A*

        "The Revolutionary era was the most creative period of Constitutionalism in American history and one of the most creative in Western history." Without a common ancestry, America had to create its nationhood from its documents, and uniquely for the times, they retained much of what was said and debated for posterity.

         The disagreement over taxation after the French and Indian War led to an assessment in Britain and America of the meaning of empire. In the colonies, two-thirds of the white men had the vote; in Britain, the number was one-sixth. The colonists thought that they should be able to vote on whether they were taxed. Parliament argued that all Britons were virtually represented. The colonists argued that Parliament could regulate trade, but not tax them, while the British asserted that Parliament held supreme sovereign sway over the empire. The Americans countered that they were not subject to Parliament, but to the king. Soon they were arguing against the king's tyranny. And it was the king's tyranny that drew Jefferson's ire in the Declaration of Independence.

       More important than the Federal constitution of 1787 were the state ones that preceded it. Almost everything we think of as uniquely American was in the state constitutions created during the war. The goal of the state constitutions was to eliminate tyranny. Eight states completed their work in 1776 alone. Fearful of the power exercised by kings, the states reined in the power given to their governors.  They required (unlike England) that no one could be a member of the legislative and executive branches simultaneously. Again unlike the mother country, the constitutions had to be written and specific. Thus, in America, there was a distinction between matters that were legal and those that were constitutional. Whereas in the UK, the only distinction was between what is legal and what is illegal.

        There was no great desire to go beyond the Articles of Confederation because 18th century political thought held that republics must be small and have a population of like people. The new nation was much too big. The Articles were no more than a "firm league of friendship" between 13 sovereign states.  What led to the creation of a centralized nation state? There was no one dramatic event, but rather a compilation of issues in the commercial arena. Businessmen wanted protection from the British mercantile system and felt there was a need to levy tariffs. The Confederation Congress could not raise taxes and needed money to pay its war debts and to ransom mariners kidnapped by the Barbary pirates. There was no one to evict British troops who lingered in Detroit, Niagara, and Oswego. The western and southern borders were not secure. Also, there was an excess of democracy as states elected tradesmen and others not as well educated as their predecessors, and these "middling men" began to provide relief for debtors, and otherwise not respect property rights. They had a too-parochial focus. It was time for gentlemen to be in charge again.  There was a consensus to meet and revise the Articles.  Madison saw an opportunity, and with a few like-minded colleagues, went to Philadelphia in 1787 with bigger plans. Madison's Virginia Plan became the template for discussion. Because the plan severely diminished the status of the states, it was met a vigorous dissent.  Hamilton then proposed such a strong central government that his suggestion made the Virginia plan seem moderate in comparison.  A month later, a compromise providing for equal representation in the Senate helped keep the process moving, but it was viewed by Madison as a catastrophic mistake. In the end, the Constitution that was adopted was a series of compromises.

      By the time of the convention, most northern states had banned slavery, and the Northwest Ordinance, promulgated that year by the Confederation Congress, prohibited the expansion of slavery in the states that would eventually emerge there. Madison believed the institution was dying and did not wish to address it. However, in order to keep Georgia and South Carolina from leaving, the notorious three-fifths compromise was adopted.

       The judiciary of the colonial era was subject to the the executive. It was neither esteemed nor independent. The establishment of an independent judiciary came about as a response to the excessive democracy mentioned above. State legislatures enacted dubious and unfair laws. Once again, some reining in was required. The rationale for judicial review was that sovereignty rested in the people. Hamilton argued that government was subject to wishes of the people.  Judicial review, if an act was inconsistent with the people's constitution, did not raise the judiciary above the legislature. Rather, it was the appropriate method of weighing the laws passed by Congress. Many, including Jefferson, thought that interpreting the constitution was not solely within the purview of the courts. Marshall brilliantly resolved the issue in 1803 in 'Marbury v. Madison' so subtlety in the Court's favor that virtually no one realized what he had done. Thirty years later, Alexis de Tocqueville said, "The Courts of Justice are the visible organs by which the legal profession is enabled to control the democracy."

         A special thanks to Greg Weiss for insisting I read this.