Founder's Follies V: Bobbing for Senators

The following is the fifth entry in Chredon's examination of the Constitution and where the Founders went wrong. Today, we look at direct election of the Senate.

See previous issues for background information.

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Issue IV: The Philadelphia Convention - The Primary Issues of the Framers

Now that I have laid the basic groundwork of the Constitution, the world in which it was enacted, the failure of the Articles of Confederation, the framers of the Constitution, and the items that were considered contentious at the Philadelphia Convention, it’s time to start looking at some of the Founders’ Follies – places where they, or those who followed them, made mistakes that are causing our nation no end of grief.

I’m going to start with something that is so non-controversial that you’ll think I’m crazy for bringing it up – the required popular election of Senators that was passed in the Seventeenth Amendment. So I’m going to submit some information for your approval and then you can answer the question – were the Founders wrong, or are we?

James WIlson

The Constitution created a government with three branches: the Executive, Legislative, and Judicial. Of the three, the Legislative was considered by far the most powerful and the most important. As I reported in Issue IV, the matter of the size, representation, and method of choosing our House Representatives and Senators were one of the most contentious issues of the Convention.

In all of that debate, however, the idea that the Senate would be elected by popular vote was submitted by only one delegate, James Wilson of Pennsylvania. When the resolution came to a vote, it was defeated 10 to 1. The entire concept of having the people choose the Senate was considered anathema to the Republican government the Founders were designing. Hear what some of the delegates said about the Upper House and its members.

John Dickenson

John Dickenson of Delaware moved that Senators should be chosen by the state legislatures “because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode.”

George Read

George Read of Delaware suggested that the Senate be “appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures.” How do you think our nation would be getting along if the Senate was chosen by the President from a list of state-approved suggestions?

James Madison said, during the convention, that “The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch.” His Virginia Plan included “that the members of the first branch of the National Legislature (the House) ought to be elected by the people of the several States... [and] that the members of the second branch of the National Legislature (the Senate) ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures.”

Charles Pinckney

Charles Pinckney of South Carolina proposed that “The members of the House of Delegates shall be chosen … by the people of the several States [and] the Senate shall be elected & chosen by the House of Delegates.

On June 7th, which was only in the second full week of the convention, a resolution was passed that the Senate should be appointed by the state legislatures. While the concept was revisited from time to time, it was never seriously challenged and so we have in the Constitution “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.”

The primary reason given for election by the state legislatures was to maintain a balance of power between the states and the federal government. While Senators were chosen by the state legislatures, so the theory went, the Senate would act to defend the rights of the states and prevent their powers from being assumed by the national government. 

Arguing for this appointment in The Federalist Papers (#62), Madison barely mentions the decision. With 85 articles on the subject of the new Constitution, Madison, Hamilton, and Jay collectively spend three entire sentences on the manner by which Senators were to be chosen:

“It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”

So if appointment by the state legislators is so “congenial with the public opinion” as to be "unnecessary to dilate on," why did the public opinion turn against it so quickly? Amendments to change to popular vote were submitted as early as 1826. In 1868, President Andrew Johnson thought the idea of a popular vote for Senate was so basic that like Madison he believed no explanation was necessary.

Historically, most of the reasons given to move to a popular vote were suspect. One reason was that corruption entered into the electoral process, with prospective Senators buying the votes of members of their state legislature. But in over 100 years, only ten Senate appointments were investigated for this type of fraud. And while the latter part of the 19th century saw the zenith of US political corruption, it was mostly in state and local governments, or in the administrations of Presidents Van Buren and Grant, not in the Senate. Nor did much of it seem to be due to state appointment of Senators. The majority of corruption was not between state governments and their national representatives. It was between powerful corporations and governments at every level. Banks, railroads, construction companies, and mines bought legislators all over America.

Another reason for popular vote was that some states implemented supermajority requirements for Senate elections and would fail to choose anyone at all in a divided and entrenched state. But this also seldom happened, and it never prevented the Senate from conducting its business. More common, especially in the post-Civil War South, were challenges to the Senator’s qualifications, challenges to the process by which they were selected, or challenges to the validity of legislature to make the selection. There were a handful of such challenges every election, and some took years to resolve. Passage of the Seventeenth Amendment did little to reduce the numbers of such investigations. Charges that state legislators were bribed were replaced by charges that state election officials were bribed. Charges that the vote in the legislature was illegally taken were replaced by charges of stuffed ballot boxes and voting the graveyards.

The one reason that was never given in support of the change was that state selection of Senators was giving us bad Senators.  No one ever challenged that the method of selection was giving us a Senate prone to gridlock, out of step with the people of their state, or committed to pursuing their personal interests.  Cases of corruption levied against sitting Senators were few.

Theodore Roosevelt

I think the most likely reason for the change was the growing power of the Populist Movement in America. Owing to the power of huge corporations and the influence of political elites, general distrust of concentrated power emerged. This led to Teddy Roosevelt’s trust-busting, the rise of unions, and the belief that ultimate power should be in the hands of the people. By 1910, progressives in 31 state governments had instituted a popular referendum for Senators. By the time the Seventeenth Amendment was passed, only two state legislatures were still selecting Senators with no input from the people. The passage of the Seventeenth Amendment was only putting into law what had already been put into practice.

This leaves us to answer the question – was this the right thing to do? 

To answer this question, we need to examine what was lost by this change. Obviously, the power of the states at the Federal level was substantially reduced. This resulted in a slow erosion of the states’ power to restrict the growth of the federal government’s scope. More and more, laws of major impact all across America were being made at the Federal level instead of by the states.

As the Federal government expanded its reach, the Senators themselves grew in power. By divorcing themselves from the need to appease their states, Senators were no longer indebted to the state governments for their positions and had control over more of the reins of government across the entire nation. This was exactly the opposite of what was needed to combat the perceived corruption in the system. Without the need to appease state legislators, Senators were free to take their directions from others – and corporate interests quickly stepped up to fill that void. The rise of corporate lobbying can be traced to the time the Seventeenth Amendment was ratified. Corporate masters no longer needed to bribe multiple members of multiple state legislatures. They could get the legislation they wanted much more quickly and easily by buying a few Senators. And the Senators themselves, no longer restricted by their need to appease the state, were open to supporting legislation that had little or no impact in their states – or even a negative impact – if the price was right.

A more modern issue of the popular vote is that of gaining media exposure in elections. Running a Senatorial campaign can cost millions of dollars. A poorly-funded candidate is an almost certain loser. So the candidate not only CAN take money from a variety of national interests, they MUST do so if they are to remain competitive. This means that the job of being a Senator is largely one of peddling influence – securing donations from wealthy donors, which we assume involves a quid-pro-quo when the time comes to vote on issues important those donors.

Since political parties also control much of the money that goes into elections, the need for money to run a campaign also ties the candidate much more tightly to party orthodoxy. A candidate that strays too far away from the party line might find himself suddenly penniless in his campaign coffers or being challenged by a better-funded candidate in the primary election.

And so, the Founders’ plan of a Senate populated by older, cooler, and wiser heads representing the interests of the state is now dust. Members of the Senate can be political neophytes with nothing more than a good smile and a wealthy backer. Would disgraced former VP candidate John Edwards have ever been directly chosen for the Senate with no political background whatsoever? 

Another argument for appointment by the state legislature is that of knowledge of the person selected. State legislatures often chose their Senators from among their own numbers, or from US Representatives of long standing, or former governors. In short, they generally all had personal knowledge of the man they were choosing. They knew his strengths and weaknesses, they knew his political connections and desires, they knew his views on important topics. In short, they knew who they were voting for and what they were likely to get. Senators hold a fair amount of power in their hands. To whom would you rather trust their selection – a group of men who know them, or a full population of voters who know him only by reputation if at all, or by the advertisements they spread about themselves. It’s like bobbing for apples – you don’t know what you’ll get until it’s too late to throw it back.

One definite point of the Constitution was that the positions of highest prominence and power were not to be handed out by the general public. Aside from the House of Representatives, all the most powerful positions in the federal government were to be filled through selection by those that knew the candidates. Senators were to be chosen by the state legislatures. The President was to be chosen by a body of knowledgeable men approved by the people for that purpose. The Supreme Court Justices and the cabinet ministers were to be chosen by the President with the approval of the Senate. 

Some people call that elitist. Some call it autocratic. But the only pertinent question is, do we get better Senators today than we did 100 years ago? Are those Senators who are now selected by the people any more responsive to the people? Are the Senators, who are chosen to represent the states, actually doing so?

Even the aforementioned James Wilson of Pennsylvania, the one delegate who suggested popular vote for the Senate, was strongly in favor of appointment by the state legislatures when he was asked to explain the new Constitution to the Pennsylvania legislature prior to its ratification.

And that is the fundamental question: Were the Founders wrong? Or were we wrong to turn away from their original plan? By whom would you rather be represented - Richard Henry Lee and James Madison, or Mitch McConnell and Harry Reid?

Founder's Follies IV: The Philadelphia Convention

This is the fourth installment of Chredon's analysis of the making of the Constitution, and where the Founders went wrong. For background, see the previous issues:

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Selection from Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy (1940)

Howard Christy's portrait of the signing of the Constitution certainly makes the event look noble and heroic. But a lot of debating, dealing, and compromising took place prior to this noble scene (if, indeed, this noble scene ever existed anywhere but Christy's imagination.). 

There are two great historical documents that describe in detail the deliberations of the Constitutional Convention. And the two men you can thank for them are near the center of the portrait above. The man in red with his hand in the air is William Jackson. Jackson was not properly a delegate to the convention. He was the secretary who recorded the resolutions and votes. But of even greater importance is the man in black and white at Jackson's left elbow, seated at a desk littered with crumpled papers - James Madison. Madison's notes on the Constitutional Convention are a complete, detailed, and by all accounts accurate recording of the day-by-day debates and decisions. They take a while to read, and can be somewhat dry reading. But for Constitutional scholars, they're the best, most complete, and most accurate recording of what the Founders believed they were creating as they wrote the Constitution. Not even the Federalist Papers offer any competition, since those works of Madison, Hamilton, and Jay were intended to sway voters, not accurately record the proceedings of the Convention.

What we find in reading Madison's journal is that the primary points of contention in creating the Constitution were not those of slavery or religion or the enumerated powers of the Federal government. Certainly, those are mentioned, but the greatest debate was on the structure of the government itself, and particularly in how many representatives each state received and how they were selected. Much debate also went into the character of the office of the Executive (President) and how he, or they, were to be chosen.

Several plans for the structure and powers of the new government were proposed:

• The Virginia Plan - Also known as the Large State Plan, this was designed by James Madison and proposed by Edmund Randolph. 
• The Pinckney Plan - Proposed by Charles Pinckney of South Carolina.
• The New Jersey Plan - Also known as the Small State Plan, this was designed by a coalition of small states and presented by William Patterson of New Jersey.
• The Hamilton Plan - Presented by Alexander Hamilton and often referred to as the British Plan, since it seemed to establish a British-style Parliament and a nationally-selected monarch.
• The Connecticut Compromise - A plan put forward by Roger Sherman of Connecticut, it was designed to get around several sticking points in the debate.

Madison's notes on the proceedings are astounding reading, not only for their clarity and scope, but also for their content. They show that the Convention was a most disciplined group of men. They meticulously and diligently discussed and debated each point in succession, resolving even the most minute wording changes and what they might mean when interpreted by those who, in future years, would be left to administer the nation. In one early debate, Mr. Pinckney and Mr. Rutledge both objected to giving the national legislature “Legislative power in all cases to which the State Legislatures were individually incompetent," because the word 'incompetent' was vague and open for debate.

The delegates were also men capable of compromise and of changing their positions. For example, early votes established that the term of office for the President should be seven years with no re-election, that the President should be selected by the Senate, and that a vote of a majority of the state legislatures should be sufficient to have the President removed from office. But none of these provisions made it into the final document. A proposal on July 5th resolved that the House should consist of one person per a certain number of population and the Senate should have equal representation among the states. This resolution was voted down almost unanimously - and eventually became law. If there was one fault or flaw with the proceedings, is was their often-used tactic of postponing the vote on any resolution that didn't seem to have a clear answer to which they would all agree. This meant that many inconsequential things were decided early while the tough choices were left until later. And often, when they tackled the tough issues, they found that other resolutions were no longer in harmony with them.

The rifts, or points of contention, between the delegates were apparent from the very beginning. The primary one was between representatives of large states and small ones. This is a debate that continues even today. While we have mostly accepted equal representation in the Senate, we still debate whether small states should have greater weight in the Electoral College than their populations would provide. The current National Popular Vote movement is the latest example of this debate. Another division was between those who felt all officers should be selected by popular vote and those who felt that all selection of national officers should be originated in the state legislatures. Some felt that the great mass of the people were too ill-informed, too easily swayed, and too subject to voting their own narrow issues to be entrusted with choosing national representatives. Others felt that any government that did not derive its power directly from the people would lose the peoples' support and eventually fail.

Some things, however, were fairly quickly decided upon. The idea that this Convention was merely to propose amendments to the Articles of Confederation was quickly abandoned. Both the Virginia and the Pinckney plans envisioned a bicameral legislature, an executive, and a judiciary, and that structure was adopted early - on the third full day of the convention. But it would be many weeks before they concluded how those officers were to be appointed, by whom, for what term, and for the administration of what powers, and in the meantime, many of these issues would raise their heads again.

Big vs Little

James Madison represented Virginia, the largest state by population. In fact, Virginia's population was nearly that of the next two states combined, and greater in population than the five smallest states combined. Thus, in James Madison's Virginia Plan, "the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants." That is to say that both houses of Congress would have proportional representation, either by population or by the amount of revenue submitted (a plan that was quickly abandoned as it would allow wealthier states to purchase more power in the national legislature.) Pinckney's plan also provided for proportional representation.

This idea was opposed by the smaller states. Under the Articles, each state received one vote on any measure. To move away from the one state - one vote system would drastically reduce small states' power in the national legislature. But the counter argument was that proportional representation gave large states power equal to their contribution, while equal representation allowed 28% of the population (the proportion of population in the seven smallest states) to dictate policy for the entire nation.

Both the Virginia and Pinckney Plans were submitted on May 29th. The debate on representation went on for several days before William Patterson of New Jersey submitted his plan on June 15th. Seeing that many delegates were in support of proportional representation, small state representatives began to challenge the authority of the Convention to radically alter the shape of the government, stating that their instructions had been to correct the Articles, not replace them in their entirely. Thus, the New Jersey Plan basically left the Articles of Confederation intact, with a single legislative body in which each state received a single vote. But it added Executive and Judiciary branches and gave the Congress new rights. 

Two days after the New Jersey plan had been proposed, Alexander Hamilton, who had been quiet throughout the first month of the Convention, finally spoke. His text was that neither plan was adequate, and he indicated with some subtlety that it was interesting that the small states did not object to radical alterations in the national government until it became clear that those changes would reduce their power. He then proposed his own plan, one which any reader would easily see tended to bring back the monarchy. Hamilton's plan was the strongest national plan, for all practical purposes ending state governments except for minor local matters, and even those being subject to veto by nationally-appointed Governors. One would almost think that he proposed this plan in order to make the Virginia plan look more reasonable by comparison.

In the end, Roger Sherman's Connecticut Compromise proposed our current legislature - a proportional House and a Senate in which each state got equal representation.

The People vs The States

The Signers of the Declaration of Independence were true believers in the principle, proposed by philosopher John Locke, that a legitimate government must gain its authority from the will of the governed. But the delegates in Philadelphia were concerned that the average local citizen, many of whom were illiterate and most of whom were totally unaware of any issues that didn't affect them personally, would be inadequate to choose representatives for a national government. 

From Madison's journal of May 31: 

Mr. Sherman opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.

Mr. Gerry. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts. it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.

(The note about the disturbances in Massachusetts were in reference to Shay's Rebellion, which had ended only a few months earlier.)

But others countered that a government so far removed from the people would be ignored unless the people were instrumental in its creation. They argued that by taking the people out of the equation, it opened up the door to collusion and cronyism between state legislators and their national counterparts. They argued that making the people responsible for the success of the national government, the people would rise to take a greater interest in the entire United States.

Mr. Mason argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Govt... It ought to know & sympathize with every part of the community... He admitted that we had been too democratic but was afraid we should. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people.

Mr. Madison considered the popular election of one branch of the national Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first—the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. 

(Yes, Madison referred to himself in the third person in his journals.)

In the Virginia and Pinckney plans, the House was chosen by the people and the Senate chosen by the House. In the Virginia plan, the House would have to choose from a list of potential Senators proposed by the state legislature. 

The New Jersey Plan did not change the nature by which the Congress was chosen - it was still a number of delegates from each state, chosen by the legislature thereof.

Hamilton's plan would have the House chosen by the people, but the Senate and President chosen by Electors who would be chosen by the people for that purpose. 

The Connecticut Compromise, of course, had the House chosen by the people and the Senate chosen by the state legislatures 'by whatever manner they should choose' - and this was ratified in the Constitution and remained that way until the Seventeenth Amendment in 1913 required them to be elected by the people.

The Executive

The selection of the Executive, and the powers he would possess, were issues in which the extremes of the various plans were well in view. The powers of the Executive ranged from practically none in the New Jersey plan to practically an absolute despot in Hamilton's plan. 

The Virginia Plan had the Executive selected by Congress, but gave the office no specific powers except the ability, with the Supreme Court, to veto legislation. No length of term was mentioned.

The Pinckney Plan was closest to what we see in our current Presidency:

He shall from time to time give information to the Legislature of the state of the Union & recommend to their consideration the measures he may think necessary—he shall take care that the laws of the United States be duly executed: he shall commission all the officers of the United States & except as to Ambassadors other ministers and Judges of the Supreme Court he shall nominate & with the consent of the Senate appoint all other officers of the United States. He shall receive public Ministers from foreign nations & may correspond with the Executives of the different States. He shall have power to grant pardons & reprieves except in impeachments—He shall be Commander in chief of the army & navy of the United States & of the Militia of the several States

Pinckney, however, gave no mention as to how the Executive would be chosen.

The New Jersey Plan was the most restrictive, giving the Executive no power except that to implement acts of Congress, and to direct the armed forces in times of war, but not to command any troops himself. In this plan, the Executive was to be chosen by the Congress, and there may be more than one and Congress may appoint any number they feel necessary to carry out the duties assigned. In debate, their plan almost sounded as though they meant to establish something like today's Cabinet, but with no true President. Their Executives were appointed by the Congress and served a single seven-year term.

Hamilton's counter to the New Jersey Plan was apparently designed to be totally unacceptable by the states. In his plan, the Executive would be chosen by electors who were in turn chosen by other electors who were chosen by the people after being apportioned into districts. The Executive would serve for life, and he would  have absolute power to veto any act of the Congress before it is implemented, to appoint state governors who would have the power to negate any act of a state legislature, to assign some national officers without review, and to suggest all others following review by the Senate. This executive was, in many ways, as close to a king as any suggestion of any Congress ever held in the US would ever propose.

In the end, an executive with powers similar to Pinckney's suggestions was created, with a manner of selection that most resembled that of the Hamilton Plan. 

There are many other debates and decisions that were made before the Constitution was finally signed and sent to the states for ratification. Future Founder's Follies issues will examine each one in detail, show its origins, how it was proposed to work, how it actually worked in practice, and some of the unintended consequences of those decisions. Look for more Founders' Follies in the weeks to come.

-----------------------------------------------

Chredon wishes to express his great thanks to the web site The Online Library of Liberty. Their web site (oll.libertyfund.org) is a vast library of knowledge invaluable for the Constitutional researcher. Unfortunately, if I were live another 100 years and devote my every waking hour to the task, I doubt I could read it all.

Founder's Follies III: Washington and Madison

This is the third entry in Chredon's analysis of where the Founders went wrong. See previous issues for background on the issues discussed here.

Issue I: The Founders' World

Issue II: The Confederate Period

Things just weren’t working.

That pretty much sums up George Washington’s view of life in the United States under the Articles of Confederation. Washington had retired after the Revolutionary War, taking no official position in the Virginia government and no position in the United States under the Articles. With the Army disbanded after the victory at Yorktown, Washington was suddenly without a job - which was fine with him. The Father of Our Country was happy to return to Mount Vernon and spend "the remainder of life in a state of undisturbed repose,” as he wrote to the States in his resignation letter. He was hopeful “of not taking any share in public business hereafter,” and had hopes “of quietly enjoying in private life, after all the toils of War, the benefits of a wise and liberal Government.”

But Washington goes on to issue a warning to the States. In fact, Washington’s Circular Letter of June 18, 1783 is an astounding premonition of the potential pitfalls the USA will soon encounter, as I outlined in Issue II.

The States refusing to honor the resolutions passed by Congress:

“That there must be a faithfull and pointed compliance on the part of every State, with the late proposals and demands of Congress, or the most fatal consequences will ensue… It is only in our united Character as an Empire, that our Independence is acknowledged, that our power can be regarded, or our Credit supported among Foreign Nations. The Treaties of the European Powers with the United States of America, will have no validity on a dissolution of the Union. We shall be left nearly in a state of Nature, or we may find by our own unhappy experience, that there is a natural and necessary progression, from the extreme of anarchy to the extreme of Tyranny; and that arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.”

The lack of any real Federal authority:

“That it is 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 Confederated Republic, without which the Union cannot be of long duration.”

The unpaid debts and obligations to veterans that led to Shays’ Rebellion:

“Let us then as a Nation be just, let us fulfil the public Contracts, which Congress had undoubtedly a right to make for the purpose of carrying on the War, with the same good faith we suppose ourselves bound to perform our private engagements… In what part of the Continent shall we find any Man, or body of Men, who would not blush to stand up and propose measures, purposely calculated to rob the Soldier of his Stipend, and the Public Creditor of his due? and were it possible that such a flagrant instance of Injustice could ever happen, would it not excite the general indignation, and tend to bring down, upon the Authors of such measures, the aggravated vengeance of Heaven?”

The lack of a standing Army, or even a regular Militia, to defend the nation:

“As there can be little doubt but Congress will recommend a proper Peace Establishment for the United States, in which a due attention will be paid to the importance of placing the Militia of the Union upon a regular and respectable footing.”

Having spent nine years in service to the nation, Washington was ready to issue his warning to the nation and retire from the public eye for the remainder of his days. But what he saw over the ensuing four years was more than he could stand. When he saw the nation that he and his troops had fought to defend, the price of the blood they had shed, the limbs they had lost, the husbands and fathers who never returned home, and then the casual way in which the new Keepers of this nation tossed aside all idea of cooperation, he was appalled. No other cause could have pulled him from retirement. For George Washington, I think the Philadelphia Convention was the last battle of the Revolutionary War. He had saved the United States from Britain. But in 1787, he had to abandon his plans of retirement in order to save it from itself.

There is little doubt in the minds of historians that George Washington was the only man in all the United States who had the respect and support to convince the states that they had to give up some of their power in order to secure lasting peace and prosperity. Unfortunately, while Washington was a great man and decent General, he knew very little about government. So while he was the only person who could have possibly led the Philadelphia Convention, he was totally unsuited to be the architect of a new government.

The architect, therefore, was fellow Virginian James Madison.

Madison was an unlikely statesman. He was not a powerful speaker. He was not physically impressive. But he was a protege and favorite of Thomas Jefferson. Jefferson had promoted Madison for acceptance in the Continental Congress during the War, and in the Virginia House of Delegates after it. Madison was known to be a behind-the-scenes consensus-builder. Lacking the ability to persuade large groups of men at once, he worked diligently to convince them one at a time.

His experience in the Virginia House of Delegates, where he served from 1784 to 1786, was very enlightening. He saw the leaders of the new Virginia state government engage in cronyism, in handing out state money to favored supporters, in enriching themselves with public money, in ignoring the requests of the United States Congress, and in repeated attempts to solve their own financial woes by extracting money from other states' commerce. And if reports were true (and they were), the Virginia government was no worse than the others. He saw the new nations that so many had fought so hard to bring to birth risking destruction from what he called "an excess of Democracy."

But Madison was also a flawed messenger. He had advocated for a strong central government long before the Philadelphia Convention, going so far as to advocate for the total dismissal of state governments and all power to be held at the Federal level. Both he and Washington were well-known advocates of a stronger central government - one that roused concern in those who feared a return to the monarchy. Madison had also been fairly well duped by French diplomats in the aftermath of the Revolutionary War and so his judgment was called into question.

Thomas Jefferson had sent Madison numerous books on every conceivable form of government ever enacted in Europe, and Madison pored over them constantly in designing the US system. Thus, Madison arrived in Philadelphia with a plan already in mind. While he waited for the rest of the delegates to arrive, he penned his Virginia Plan and had it presented to the Convention by Governor Randolph of Virginia. The plan included a bicameral legislature, a federal executive, and a system of federal courts. It also had some fairly controversial provisions, particularly that the US government would have the power to negate any state law that contradicted a Federal law.

But there is one thing that the Virginia Plan does not do. It makes no mention of the specific powers that would be granted to the Federal government. Its first resolution merely states:

Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defense, security of liberty and general welfare."

The next Founder's Follies article will look at the plans presented to the Philadelphia Convention and examine how those plans were merged into our Constitution.

Founder's Follies II: The Confederate Period

This is the second installment in Chredon's in-depth analysis of where the Founders went wrong. 

See Issue I, The Founder’s World for background information on the issues at hand.

So, who was the first President of the United States?

That’s right – John Hanson of Maryland.

Or, perhaps it was Henry Laurens of South Carolina. Or Samuel Huntington of Connecticut.  It all depends upon when you start counting.

What, you thought it was George Washington? Well, that’s not surprising, given how History tends to gloss over the entire period in which the United States was run under the Articles of Confederation. It is one of the least-taught periods in US history, but if you want to understand the motivations that led to the creation of the Constitution, it’s required knowledge. The Constitution is a reactionary document – it attempts to strike a balance between the totalitarian monarchy of Great Britain and the total chaos of the Articles.

The Articles were written by the Second Continental Congress, the same group that wrote the Declaration of Independence, by a committee established the day after assigning Jefferson, Adams, and Franklin to write the Declaration. But while the Declaration was written, approved, and passed in less than a month, the Articles took over a year to write, and over five years to ratify. The Second Continental Congress, however, began at once to implement its procedures.

It would be unfair to claim that the Articles were the framework for a national government. At best, they were an alliance treaty. In modern times, they more closely match the NATO charter or the treaties that established the European Union than they do the Constitution. The thirteen states, having only recently declared their independence, were in no hurry to hand their hard-fought sovereignty over to some higher level of government. And this, more than anything else, was why the Articles did not work.

For a nation (or union of nations) at war, the weakness of the Articles made it difficult for the USA to make alliances and treaties with France, Spain, and other enemies of Britain, since there was no authority in the Congress to sign them. It made it difficult to borrow money to support the war because there was no guarantee of repayment. The Congress was trying to act collectively as though they had the authority to do so, when in fact they did not. But for all its weaknesses as a model for a nation at war, it was only after the war that the worst weaknesses emerged.

The weaknesses in structure of the Articles are outlined in a lot of places, but I’ll mention the most glaring ones here.

1. The United States of America under the Articles was technically not a nation at all. Unlike the Constitution, which created a structure in which sovereignty was shared, states retained all sovereignty under the Articles and the national Congress was only “a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare.”
2. Because it had no sovereign authority, the Congress could not raise funds in any way. It could not tax or impose tariffs. It could only request money from the states. The states could choose to honor those requests, or not.
3. States coined their own money and regulated the supply and value. Congress also printed its own money, called ‘Continentals,’ which depreciated rapidly and were largely seen as worthless.
4. While each state could send from two to seven members to Congress, each state got only one vote.
5. Passage of any measure required two-thirds of the states to agree.
6. Any amendments to the Articles required unanimous consent of all thirteen states.

So what you really had was a national committee with no real power or authority. It could make decisions, but it could not enforce them. It could make treaties but could not ratify them or require the states to honor them. It could declare war, but could not raise an army or a navy.  

While the Revolutionary War went on, Congress was able to keep an army in the field, but just barely. Many states refused requests for troops or material unless battles were being fought in their state. Troops who were promised pay when they volunteered or were conscripted were seldom paid, ate poorly, lived in squalor, and were ill-supplied, especially compared to their British counterparts. Washington often despaired of winning the war simply because he feared his troops would starve before they could achieve victory. Still, with an active war on and the fear of the punishments King George might impose if they surrendered, the nation managed, with lots of help from the French, to work together and keep an army in the field long enough to defeat Cornwallis at Yorktown. Barely.

After the war was over, many of the states seemed content to forget that the Articles had ever been written. Most men who had served during the War returned to their home states and found local government sufficient to their needs. States neglected to send delegates to the US Congress since without the War, they saw no reason for it, Thomas Jefferson proposed a Committee of the States, to which each state would send a single representative, vested with the full authority of the Congress save the ability to amend the Articles. But as Jefferson himself observed, the Committee “quarreled very soon, split into two parties, and abandoned their post.”

In fact, the Congress of the Confederation proved more successful as a target for scapegoating. Veterans of the Revolution had been promised a pension of half their pay for life. When state governments came to collect taxes on their citizens, the citizens would complain that they had no money because they had not been paid while in the army and had not received their pensions. The states would blame this on the Congress, conveniently ignoring that Congress was not making good on its debts because the states refused to pay their obligations to the Congress.

The weakness of the Congress made several other problems possible:

Shays’ Rebellion. The Government of Massachusetts, in an attempt to pay off its own war debts, was taxing the farmers and tradesmen returning from the War. Those taxes were high, and the returning veterans were just beginning to get back to business as usual. Many had been forced to sell any items of value they had in order to live out the poverty of the war years. Many were in debt before the war and had made no payments during it. Many were owed back pay for seven years in which they performed no other labor. None were receiving their pensions. But Governor Bowdouin refused to hear their complaints and continued supporting the taxation of the veterans. This often included confiscating their property, selling their household goods, and throwing them into debtors prison. Daniel Shays,a hero of the Revolution and a veteran of Lexington, Bunker Hill, and Saratoga, began to organize farmers and tradesmen to prevent courts from being held, to stop the confiscation of property, and upon occasion to attack a prison and release those being held for debts. This prompted the Governor to call out a militia from Boston to meet the ‘rebels’ in combat and almost touched off a new Revolutionary War.

Tariff Wars: Without laws governing commerce between the states, many states seemed intent on enriching themselves through tariffs on trade with other states. (So much for a “firm league of friendship with each other.”) In one instance, Rhode Island was taxing all traffic between New York and Boston. In another, New York was taxing all ships that stopped there between Boston and Philadelphia. In one of the biggest cases of states defying the Congress, Connecticut sought to profit on international trade. When the British passed a resolution after the Treaty of Paris that no US-flagged ships could do business in British ports, the Congress of the Confederation requested that each state pass a similar resolution, closing all US ports to British ships. However, Connecticut, seeing the possibility of collecting tariffs on all British trade with New England, did not enforce the treaty and kept its ports open.

Currency Exchange: Prior to the Declaration, states printed or coined their own currency strictly for use within the colony. All of these currencies remained in effect until 1793, when the Constitution granted coinage to only the Federal government. But while they were in effect, the value of the different states’ currency was not uniform in relation to British pounds or Spanish dollars. This practice strangled trade, as the dearth of actual gold and silver coins made the continental paper money practically worthless.

British Occupation: The British maintained several outposts in land that had been ceded to the States in the Treaty of Paris, but Congress proved unable to raise a large enough army to dislodge them.

Treatment of British Loyalists: The Treaty of Paris included language to protect British loyalists still within the United States. They were not to be harmed, nor have their land or goods taken, and they were to be given assistance to return to Britain with all their possessions if they so desired. But Congress was unable to prevent many states from attempting to solve their own economic woes by confiscating everything the loyalists owned.

Piracy: Since only the states had Navies, it was impossible to coordinate the use of those ships to prevent piracy against US trade. Each state would use its navy to protect its own shipping, but seldom worked in any coordinated fashion to protect the trade of other states.

The Frontier: While the Northwest Ordinance and other legislation passed by the Congress worked well in settling conflicts of westward expansion, the inability to raise armies left many on the frontier open to attack from Indian tribes, the British, or British disguised as Indian tribes. Congress could neither make treaties with the tribes nor raise an army sufficient to protect the borders.

These are only a few examples of events that unfolded under the Articles of Confederation that had a direct impact on the formation of the Constitution.

Historical Notes:

Henry Laurens of South Carolina was President of the Continental Congress on the day that the Articles of Confederation were finally passed, Nov 15, 1777. Though it had yet to be ratified, the Continental Congress changed its name to the United States In Congress Assembled, to denote its new status as a group of free sovereign nations.

Samuel Huntington of Connecticut was President of the United States In Congress Assembled on March 1, 1781, the day that Maryland became the last of the thirteen states to ratify the Articles and thereby the day upon which they went into effect.

John Hanson of Maryland was the first person elected to the position President of the United States In Congress Assembled after the Articles were ratified. He took over the office on November 5, 1781.

George Washington was elected the first President of the United States under the Constitution, taking office on April 30, 1789.

Founder's Follies I: The Founders' World

This post is the first in a series by Chredon. The Founders’ Follies series will look at the evolution of the Constitution and its interpretation in light of what the Founding Fathers intended our nation to be, with a focus on where our current position deviates from the Founders’ plan, and how we got there. 


Imagine the scene. It’s the summer of 1787 and you are in Philadelphia, meeting daily with the great men who make up the Constitutional Convention. These men, all learned, wise, and dedicated to the creation of a single nation forged out of the ashes of the Revolutionary War and the failure of the Articles of Confederation are all in unison as they declare a new direction for our nation.

And if you believe that, I have got some beachfront property in Topeka to sell you.

Today, 225 years after the Philadelphia Convention, we look back and revere the Founders with the long lens of history. Any politician of any party or stripe will cloak themselves in the Founders’ mantle, trying desperately to prove that the Founders believed exactly as they do. We revere them as great statesmen, we place them on pedestals as the Patron Saints of America. But to understand the Constitution and how it came into being, it’s important to know who the Founders were and what they believed about the world they lived in and the nation they were shaping.

Despite the reverence we feel for them today, the Founders were not saints, nor were they endowed with any great education or wisdom beyond that of normal upper-class men of their day.  Certainly, some of the most famous men in US history were participants – George Washington chaired the Convention, and attendees included Ben Franklin, James Madison, Alexander Hamilton, John Jay, and George Mason. But many of the delegates were uneducated or self-educated. Most were primarily farmers, though often very successful ones. And many of them would go on to hold positions in their state governments or the Federal government.

One common misconception about the delegates to the Philadelphia Convention is that they were drawn from the same group that signed the Declaration of Independence in 1776. But of the 55 delegates, only eight were also signers of the Declaration, four of whom were from Pennsylvania.

• Roger Sherman, CT

• George Read, DE

• Elbridge Gerry, MA

• Robert Morris, PA

• Benjamin Franklin, PA

• George Clymer, PA

• James Wilson, PA

• George Wythe, VA

Why did so few of the signers of the Declaration attend the Constitutional Convention? Some were busy elsewhere. John Adams and Thomas Jefferson were the US Ministers to England and France, respectively.  John Hancock was Governor of Massachusetts at the time, and Sam Adams was President of the Senate in that state.  In short, many of the men who had brought the United States out from British rule were busy running those states. But others had different reasons for not attending. Patrick Henry, one of the great architects of American independence, refused to attend because he "smelt a rat in Philadelphia, tending toward the monarchy." Rhode Island boycotted the Convention primarily because they were supporting their state on tariffs they imposed on all trade between New York and Boston. They had no interest in giving up their rights to tax interstate commerce.

The Signers of the Declaration were men of great idealism, steeped in the writings of Hobbes and Locke, with strong ideas about the relationship between the governed and the government. The Delegates to the Constitutional Convention were more practical, nuts-and-bolts men who were simply trying to take something that did not work well and make it work better.

Another myth is that once it was concluded, all of the delegates to the Convention supported the new Constitution. They did not.  Thirteen left the Convention rather than sign it, and three who were present refused to sign. Thus, only 39 of the 55 delegates did sign it, and none were fully supportive of all of its provisions. Many who signed it said that they would urge their states to refuse to ratify it until a Bill of Rights was attached.

But to understand the Constitution, one needs to understand the world in which it was enacted. Today, we see the United States as a single nation made from a composite of various areas that we call ‘states.’ But the word ‘state’ means ‘nation.’

We have all read, and in many cases memorized and repeated, the words of Lincoln at Gettysburg:

"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."

But you can be sure that Thomas Jefferson would not agree with Lincoln’s immortal words. At the event of which Lincoln speaks, the Declaration of Independence, Jefferson and the Signers agreed:

"That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

Note that Jefferson uses the word State to describe not only the newly-independent colonies, but also Great Britain itself. Jefferson writes that this declaration is being made by Free and Independent States, not by a single government, and that each of those states individually would have all the rights and powers reserved to any other nation.

In 1787, the delegates who attended the Constitutional Convention came as representatives of twelve independent, self-governing nations. None of the attendees came to create a new, single nation that would supplant the thirteen states’ governments.

This distinction, strongly worded and held dear by the early leaders of the United States, is all but forgotten today. The Civil War put an end to the idea of America as a federation of independent nations and created a de facto single nation without benefit of de jure recognition. It is telling that in news articles published prior to 1860, the United States is always referred to in the plural (the United States are…) while after 1865, it is always the singular (the United States is…).

The convention itself grew out of a failed attempt in 1786 to make amendments to the Articles of Confederation. This meeting, the Annapolis Convention, was called primarily to address problems with trade and commerce under the Articles. But only five states sent delegates, so all that the Annapolis Convention achieved was to set a date and time for the Philadelphia Convention and broaden its mandate. The Philadelphia Convention was to include not only trade and commerce, but to examine the structural weaknesses inherent in the Articles and propose remedies.

This is the world in which the Constitutional Convention was held. This framework will guide me as I continue to write about the Founders’ Follies.