The Pathos of Politics – The American Constitution

The American Constitution

Mankind are governed more by their feelings than by reason. ~ American political philosopher Samuel Adams

The American Revolution roiled with political and social upheaval. In drafting new constitutions, many states fell under the influence of radicals like Thomas Paine and Samuel Adams.

The natural liberty of man is to be free from any superior power on Earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule. ~ Samuel Adams

States’ constitutions adopted in 1776 were not simple replacements of rule from the British. They aimed at radical societal reforms.

Legislators attained supremacy. Governors lost their veto power, their terms limited to 1 year.

In some states, elaborate checks and balances were erected to preclude any trace of despotism. Vermont, Pennsylvania, and Georgia went as far as establishing unicameral legislatures.

Some states tore at the roots of aristocracy: attacking the traditional mechanisms of inheritance (primogeniture, entails), quitrents, and tithes. Others abolished state churches or wiped out religious qualifications for holding office.

Radical economic legislation was enacted. States confiscated crown and loyalists’ lands, divvying them out to small farmers and war veterans. After the war, several states passed laws to benefit the debtor classes.

Each state retains its sovereignty, freedom, and independence…. ~ Articles of Confederation (1781)

In 1781, the states approved Articles of Confederation that granted limited Congressional power, made no provision for a chief executive, and left it to individual states to levy taxes and raise troops. State sovereignty within a loose confederation reflected fear that a strong central government would lead to tyranny.

The colonies were united only for the purpose of removing British meddling in their affairs. They had no interest in allowing one to interfere with another.

Inability to raise revenue meant that Congress could accomplish very little. Congress lacking any clout meant that states were free to fall into petty bickering and competition, which they quickly did. There were disputes over borders, river navigation rights, and interstate commerce.

Conservative reaction to economic radicalism and enfeebled governance was not long in coming. Self-styled Federalists agitated to convene a convention to create a constitution that gave power to a central government.

The fundamental defect is a want of power in Congress. The confederation itself is defective and requires to be altered; it is neither fit for war nor peace. ~ New York Federalist Alexander Hamilton

The majority of congressional delegates grudgingly agreed to a convention, and then proceeded to make every effort to limit its authority.

The Constitutional Convention met in Philadelphia from 25 May 1787 to 17 September 1787, ostensibly to revise the Articles of Confederation. Led by Virginian James Madison, Federalists had a grander scheme in mind all along.


Philadelphia in 1787 was a compact city. All of the delegates, wherever they stayed in town, were in easy walking distance to the State House where the convention was held.

The fetor of Philadelphia was fierce, especially during the summer months. Butchers and tanners threw used carcasses into the creek, which had long before turned into an open sewer.

The stench of rotting flesh combined with other industrial waste products, such as from soap boilers and brewers, as well as a constant flow of excrement seeping into the creek from neighboring privies.

The pungent air complemented the contamination of the water supply, which made dysentery a constant danger, topped off by flies and other insects which bred in stagnant pools and offered their own discomforts. Yellow fever outbreaks from mosquitos were a seasonal occasion.

In the respects of urban squalor amid pockets of prosperity and the leavings of free enterprise infected upon all in an unregulated state, Philadelphia well resembled other early American cities, and equally represented the outlines of governance that issued from it in the form of a constitution.


Many of the assumptions in Madison’s Virginia Plan about the architecture of central government went unchallenged. Foremost was a tripartite division of autonomous authority, with built-in checks and balances: a bicameral legislature, an executive, and a judiciary.

By this time, the aversion to an independent executive had been overcome, as states with governors beholden to the legislature were widely seen as a source of political paralysis.

The potential power of a president remained a concern. Many wished to diffuse executive power by having it divided among 3 men.

The potential problems with a 3-man executive, in addition to the supposition that the esteemed George Washington would be the 1st president, soothed enough delegates for a single executive to be a foregone conclusion.

The division of the legislature into 2 houses was uncontroversial. There was ample historical antecedent, in both Britain and colonial state legislatures, and experience had convinced delegates that an upper house was necessary to check the passions of populism.

To say that the founding fathers’ faith in democracy was alloyed would be understatement. While most every delegate would have counted himself a “republican,” which meant against monarchy and for representative government, few advocated unmediated democracy. They feared mob rule more than they distained limiting suffrage along aristocratic lines.

Money is power, and states ought to have weight in the government in proportion to their wealth. ~ delegate John Rutledge, later a supreme court justice

A major dispute arose as to how to apportion the lower house of the legislature. Most delegates wanted a mixture that reflected property ownership as a proxy for wealth and population. The issue of property was dropped only owing to the difficulty in calculating its value and correlating it to representation.

There was generally little sentiment for political equality among Convention delegates, both with regard to voters and those who might run for office. Reports that some members of state legislatures had used their public office to escape paying private debts unsettled some.

Concerned about corruption, delegates overwhelmingly favored finding some way to keep “bad men” out of office. Once more, the proposed proxy for solvency was owning property, but the concern came to naught when it came to erecting an economic bar to running for office.

Delegates generally accepted the desire of states with large numbers of slaves to somehow include them in the population count. A compromise was reached that a slave constituted 3/5th of a person; not altogether because African slaves were considered subhuman, but as a rough guess as to their supposed contribution to the economy of their state.

Racism is a strong taboo in 21st century America, even as it still runs rampant as a societal current. The culture of 18th-century Europeans and their counterparts in the New World was nowhere near as circumspect. The conviction that non-white races were inferior was widespread.

There was no dispute that the lower house should be directly elected. The upper house was a different matter.

Few agreed with Madison that the upper house should be selected by the lower house, but neither did they like the idea of the upper house elected by popular vote.

The reluctance to popularly elect the upper house (senate) was not altogether about voters’ weak-mindedness. There was also a concern about a paucity of timely information.

News disseminated slowly in the 18th century. Delegates noted that newspaper coverage of current events was typically sparse and often outdated. A fresh example was that local papers had little to say about the Convention despite its obvious historical importance.

There was a good reason for the meager reportage of the Convention. There was little to report.

The delegates swore themselves to secrecy about the proceedings. This allowed them the opportunity to float ideas, deliberate and disagree vehemently, but then reconcile without risking later political repercussions.

No constitution would ever have been adopted by the convention if the debates had been public. ~ James Madison

So much of the proposed constitution was a radical departure that the decision was made for senators to be selected by state legislatures, as it had been with delegates to national conventions.

Then there was the prickly issue of how to apportion representatives in the upper house. A committee formed to hammer out various details recommended equal representation among the states.

The larger states balked at giving equal power to smaller states. Appeasement came with 2 measures.

The 1st was the requirement that revenue bills had to originate in the lower house and were not subject to modification by the senate. This origination clause was later edited such that revenue bills could be amended in the upper house.

The 2nd was to make senators free agents: by giving each senator a vote, rather than each state delegation, and by having 2 senators from each state. Through these measures, senators would presumably act on behalf of their state as a whole, rather than be mere agents of the state legislatures.

Madison favored a “national” constitution. Many delegates desired a “federal” system: a union of states under a central government, not a nation with centralized power administered by the states. It was felt that the senate represented a federal character: not because senators were elected by state legislatures, but because each state was equally represented in the senate.

While executive power was a worry going into the convention, granting too much power to the legislature became a concern as the Convention wore on. Madison suggested that the federal legislature (Congress) should be able to invalidate state laws. The idea found few takers, and so was dropped.

Most delegates thought that there should be some mechanism to invalidate lousy laws passed by the Congress. The settled solution was to provide veto power to the president. Many also considered that a decent guard against the executive becoming beholden to an imperial legislature.

How a president should be elected was one of the last major issues to be resolved. Direct election was favored by few, including Madison. Besides the slow news dissemination issue, there was concern that people would only vote for candidates from their state or region. A vocal minority thought that state governors choosing the president was a good idea.

The Virginia Plan called for the Congress to elect the president. Delegates from a majority of the states approved. The Committee recommended instead an electoral college, apportioned among the states as in the lower house, but chosen by each state “in such manner as its legislature may direct.”

The Committee explained that it feared “intrigue” if the president was selected by a small group of men who regularly met and were concerned about the independence of the executive if elected by the Congress. Thus, the electoral college was born – out of fear of direct democracy and as a hedge against official corruption.

In the English tradition, judges had been agents of the King, who represented his interests throughout the realm. Madison believed that a direct link between state executives and the judiciary was a source of corruption via patronage, so he opted for judges to be picked by the legislature.

The general idea was to create an independent judiciary, despite there being no historical precedent for it. At the convention, the agreed-upon compromise was that the president should choose judges, and the senate confirm them.

I consent, Sir, to this constitution because I expect no better. ~ convention delegate

Bill of Rights

A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference. ~ Thomas Jefferson

There was a glaring omission in the constitution: it had no bill of rights. The remedy was ratified in 1788 and came into force the next year.

At the convention, a bill of rights was suggested by Virginian delegate George Mason, who favored explicit natural rights for both states and individuals. Yet not a single state delegation at the Convention supported the idea.

Representative James Madison proposed 39 amendments to the constitution during the 1st session of Congress in 1789. Among them were provisions that became ratified as a bill of rights: guaranteeing certain personal freedoms, reserving some powers to the states and public, and placing certain limits on the power of the central government in judicial and other proceedings.

The bill of rights was largely eviscerated in time, as the national government shucked federalism and trampled on citizens’ constitutional rights. The clarion epistle of the American constitution was that the founding fathers believed neither in democracy nor a right of all people to be free.

There can be no legitimacy to a constitution that allows injustice to be institutionalized, nor to a government which denies the civility to which a constitution aspires.