Historically speaking, not all moments are created equal. Yes, things are happening all around us, everywhere, a nonstop flood of passing moments, but history does not happen equally in all places and times. There are many places and times of which history takes little or no notice.1 It generally does not deal with the vast stretches of ordinary time during which life goes on normally, during which men and women fall in love, have families, raise their children, bury their dead, and carry on with the many small acts of heroism, sacrifice, and devotion that mark the conduct of everyday life—the “unhistoric acts,” as George Eliot wrote in the closing words of her great novel Middlemarch, of those “who lived faithfully a hidden life, and rest in unvisited tombs.”

No, what we call history is more likely to concern itself with outbursts of the extraordinary, with those events and persons that invade the flow of ordinary time and alter the direction of its currents. The history of ideas, in particular, revolves around certain vital nodes of concentrated human activity—time periods and places in which the torpor of the everyday is interrupted by a concentrated surge of fresh intellectual energy and creative force, and thoughts and discussions and debates and institutions converge in ways that change the way we think and change the world. That is generally what we mean when we call events or persons historic: that their significance is not merely confined to the past, but that they have an ongoing presence beyond their own time and help add to the enduring treasury of civilization. These nodes generally find their natural homes in cities: Jerusalem, Athens, Rome, Florence, London, Paris, New York…and Philadelphia.

These nodes of concentrated activity come to life in groups of people—circles, salons, debating societies, political parties, schools, and universities—and not merely in the minds and words of solitary geniuses. Thus it is that we speak in the plural of the Founders of the American nation or the Framers of the American Constitution. There were singular geniuses in those groups, to be sure, and the pages of this book pay them homage in the form of individual biographies. But it is also important to stand back and think of the group as a whole, a group that embodies the wider circle of discourse: a circle that was capable of sustaining the remarkably wise insights into the nature of political society without which the things we celebrate as Americans would likely never have come to pass.

It is likewise important to remember that, although we often speak of “the Founders” as if they were all of the same mind, that was definitely not the case. You could drive a truck through the differences between Alexander Hamilton, whose enthusiasm for commerce and skepticism about republics were well-known, and Thomas Jefferson, whose radical democratic sympathies coexisted with a vision of America’s future as an agrarian empire. A great deal of conflict, debate, jostling, wrestling, and other forms of vigorous intellectual interchange were important elements in the emergence of the constitutional arrangements that carried the American nation forward into a successful independent existence. Nobody got exactly what he wanted, and yet, as we will see, that state of contention, far from being regrettable, has ultimately been all to our good because it helped to model the kind of political order the Constitution would seek to establish, one built upon the recognition of conflict as a fundamental organizing principle.

Yes, but what kind of conflict? That is an interesting question. To begin answering it, consider the titles of three highly interesting and well-regarded recent books on the Founding period: Founding Brothers: The Revolutionary Generation, by Joseph J. Ellis, winner of the 2000 Pulitzer Prize; Founding Partisans: Hamilton, Madison, Jefferson, Adams, and the Brawling Birth of American Politics, by H.W. Brands; and Friends Divided: John Adams and Thomas Jefferson, by Gordon S. Wood, arguably the dean of living historians of the United States.2

One can’t miss the unifying theme here. These founding brothers were also quarrelsome ones: They were friends, but friends divided, and the political was also the personal. Ellis even argues in his book that the constitutional system of checks and balances that permitted the infant American Republic to survive and thrive should be thought of not solely as a political or institutional theory, but also as a practical measure grounded in the experience of leaders and regions with quite different visions and values. In this view, the Constitution served in part to codify in law the way that these quarreling brothers settled their disputes.

What held it all together and made it possible for the nation to endure a gauntlet of challenges to the emergence of a free and independent America? What did these figures all have in common? The ground they shared was their awareness of the grave and glorious task that history had set before them and their understanding that this task was a responsibility they could not evade. They knew that a distinct American people now existed and that it was up to them to devise a political regime suitable to the government of that people—and that their actions would determine to a large extent what kind of future lay ahead for this great experiment.

In short, they knew they were Founders. They understood the consequentiality of what they were doing. That understanding was a source of joy, but it was also a source of responsibility. Writing on July 3, 1776, John Adams predicted to his wife Abigail that:

The Second Day of [independence] will be the most memorable Epocha, in the History of America.—I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

Adams erred only in expecting that July 2 would be the appointed day. He continued:

You will think me transported with Enthusiasm but I am not.—I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States.—Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means.3

A few years later, after a war had been fought and a new Constitution had been drafted, Alexander Hamilton amplified the theme, arguing in the heat of the debates over ratification of that new Constitution that:

[I]t seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from ref[l]ection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind.4

A year later, George Washington, the greatest hero of the Revolution and the one man to whom all quarrelling factions were able to bow their heads, took the oath of office as President on a second-floor balcony of Federal Hall in New York City where an assembled crowd could witness the historic event. Speaking minutes later before a joint session of the new Congress, he declared that “the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.”5

So they knew they were Founders, leaders of citizens rather than subjects, and they grasped the magnitude of what they needed to found. They were committed to the creation of a regime that protected the rights and liberties of self-governing citizens. They also well understood the fragility of such arrangements, of all republics throughout history, and understood that anything meriting the label of “experiment” was bound to be a perilous thing, a voyage into uncharted waters, as likely to fail as to succeed.

Jefferson and the Declaration

Let us go back to the beginnings of this foundational voyage, beginning with the document we celebrate every Fourth of July, the Declaration of Independence, and its chief author, Thomas Jefferson.

Here a bit of a surprise awaits us. Jefferson’s intellectual brilliance was widely attested, and he was not a particularly modest man. Nonetheless, in a famous letter of 1825 to Henry Lee, he insisted upon taking a modest approach to his role as the principal draftsman of the document that has come to stand for the heart and soul of the American Revolution. He could have done otherwise. He could have claimed brilliant originality for himself. In fact, he could have made himself out to be a visionary. Many have done just that. Or he could have complained, as he had on other occasions, about the fact that the crabbed souls on the drafting committee changed the soaring prose in his brilliant original draft in ways of which he disapproved. He also chose not to do that.

So what did he say? The passage in question deserves to be quoted at length as the best account we have of his considered view of the matter, offered in his old age in the year before his death:

[W]ith respect to our rights and the acts of the British government contravening those rights, there was but one opinion on this side of the water. [A]ll American whigs thought alike on these subjects. [W]hen forced therefore to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. [T]his was the object of the Declaration of Independ[e]nce. [N]ot to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject; [. . .] terms so plain and firm, as to command their assent, and to justify ourselves in the independ[e]nt stand we [. . .] compelled to take. [N]either aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the [A]merican mind, and to give to that expression the proper tone and spirit called for by the occasion. [A]ll it’s authority rests then on the harmonising sentiments of the day, whether expressed, in convers[atio]ns in letters, printed essays or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney Etc. [T]he historical documents which you mention as in your possession, ought all to be found, and I am persuaded you will find, to be corroborative of the facts and principles advanced in that Declaration.6

There are various ways that we can interpret Jefferson’s words here, but there is nothing in them that can support the idea that the sources of the Declaration were few in number and easily enumerated. Everything points the other way. Even John Locke, whose Second Treatise of Government has long been taken as a likely source for some of the most famous language in the Declaration’s preamble, although a strong case can also be made for the influence of George Mason’s Virginia Declaration of Rights,7 is mentioned only in passing as one of several influential but diverse writers, half of them ancient and half of them modern. Of equal weight, in Jefferson’s estimation, were a multitude of various unspecified documents that, taken together, expressed the “harmonising sentiments of the day.”

Religion and the “Ancient Constitution”

In short, Jefferson’s account tells us something important about the diffuse and mingled elements coursing around and through the words of this great document. There were a great many voices in the air. To understand the Declaration better, and to understand the various sources of its strength and enduring appeal, we will benefit from a little disentangling so that we can better discern the distinct voices.

First of all, we should acknowledge that Jefferson was very much a man of the Enlightenment, and the Declaration is in many ways a document of the Enlightenment. This is evident in its emphasis on the natural rights of all human beings, as well as the consensual basis for a free and legitimate civil society, and its service as an important inspiration both for the French Revolution 13 years later and similar social movements elsewhere even unto the present day.

At the same time, we also have to remember that, as Jefferson insisted to Lee, the Declaration was a product of its times, a creature of its historical moment, a political document serving as a kind of press release to the world, disclosing the “Facts” of creeping British tyranny that had been usurping the habits of self-rule that had been the lifeblood of the colonists’ customary way of life. In other words, it should not be read only as a stirring expression of republican principles—although it was that too—but also as an explanation of the revolutionary response by the American people to these particular circumstances. It is at the same time both abstract and concrete.

So it was an Enlightenment document…but not only an Enlightenment document. There were many pre-Enlightenment elements in it, background assumptions that have to be taken into account—both in reading it and in assessing how it was received and understood by Americans—if it is to be fully understood and its authority credited.

For example, this apologia for the radical act of American independence drew upon a highly historical and tradition-bound element: the cultural muscle-memory of a century and a half of colonial American self-government, which in turn drew upon a long tradition of English legal and constitutional practices dating back at least as far as Magna Carta. This element is what figures most prominently in the list of grievances that forms the bulk of the Declaration. Nearly all of them had to do with the deprivation of customary self-rule and the violation of inherited rights that were due to colonists as Englishmen.

Such appeals differ fundamentally from appeals to unalienable natural rights, because these former sets of rights are established by precedent and are claimed as an inheritance from forebears. They are also claimed as fundamental to the exercise of liberty. In the Declaration’s grievances, the king is accused of having “refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.” He is also accused of weakening or dissolving representative bodies, inhibiting the exercise of judicial powers, obstructing immigration, imposing unelected and unaccountable imperial officials, quartering standing armies, rendering troops unaccountable to law, and so on.8

The force behind such language is less the notion of abstract natural rights than it is a notion of specific inherited rights grounded ultimately in an “ancient constitution” traceable back through the legal thought of Sir Edward Coke and Sir John Fortescue to Magna Carta itself, and even further back to a shadowy “Anglo–Saxon constitution,” and forward through the political struggles of the 17th century all the way to the Glorious Revolution of 1688, which finally established the supremacy of Parliament over the monarchy.

Needless to say, the distinction between the two understandings of rights is clearer in definition than in actual practice; Jefferson himself believed that the Anglo–Saxon constitution was the “rightful root” of the English constitution even as he believed that Americans had enjoyed the unique advantage of being able to appeal to nature directly and find its instructions “engraved in our hearts.”9 Call it an inconsistency if you like, but it is the kind of inconsistency in which active political thought abounds.

The larger point here is that an idea of the ancient constitution and the historical and traditional transmission and elaboration of its liberties through many centuries of British history forms a vivid and powerful reference point in the background of 18th century Anglo–American thought.

Legal scholar John Phillip Reid offers a telling illustration of this fact in an essay on the subject. In the spring of 1779, as the Revolutionary War raged, a British general established an outpost in what is today Maine, attempting to restore the jurisdiction of the Crown in a rebellious American area. He invited the support of those loyal citizens who “are well affected to his Majesty’s person, and [to] the ancient constitution under which they can alone expect relief from the distressed situation they are now in.” Later that same year, an American general intent upon destroying the British outpost fired back with this challenge: “I have thought proper to issue this Proclamation…declaring that the allegiance due to the ancient constitution obliges [us] to resist to the last extremity the present system of tyranny in the British Government.”10 A rhetorical skirmish, yes, but also a highly illustrative one—because each side sought to claim tradition and the ancient constitution for its own cause!

Finally, we should stress the immense influence of Biblical religion as a background element in American revolutionary sentiment. To be sure, in keeping with his well-established reputation as a skeptic and critic of religious orthodoxy, Jefferson does not mention it in his letter to Lee. However, it is also the case that, when asked to submit a proposal for the design of the Great Seal of the United States, both Jefferson and Benjamin Franklin recommended a depiction of the Exodus, which they described as follows:

…Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharoah who is sitting in an open Chariot, a Crown on his Head and a Sword in his hand. Rays from a Pillar of Fire in the Clouds reaching to Moses, to express that he acts by Command of the Deity.

Motto, Rebellion to Tyrants Is Obedience to God.11

Nor was this offered as a form of pandering to the great unwashed. Jefferson liked the motto so much that he used it on his personal seal.12 The story of the Exodus, one of the greatest defining moments in the story of the Jewish people and a crucial figuration for Christians of God’s promise of redemption and salvation, was to be incorporated into the American story as the symbolic expression of America’s quest for liberty against the tyranny of kings. It not only echoed the Biblical self-understanding of the Pilgrims and Puritans who migrated to Massachusetts in the 17th century—they too believed themselves to be leaving behind an imprisoning Egypt of their birth to take up residence in a new Zion—but also would go on to serve as a leitmotif in the lyrics of many African–American slave songs, such as “Go Down, Moses,” expressing the yearning of the enslaved for liberation from bondage. The Exodus is part of the American nation’s mental and spiritual architecture.

The influence of religion on the revolutionary cause went much, much deeper than the ideas of elite leaders like Jefferson and Franklin. It is only recently that historians have begun to appreciate the breadth and depth of the religious sentiments of the time and how they affected popular politics. As Barry Alan Shain argued in The Myth of American Individualism, 18th century British North American religious life was dominated by reformed Protestant beliefs expressed vividly in Revolutionary-era sermons, public documents, newspaper editorials, and political pamphlets.13 In such communities, a robust conception of original sin and a commitment to communitarian values helped to undergird a suspicious view of concentrated power, driving opposition to imperial intrusions into American life, particularly when coming from a mother country whose culture was seen as arrogant and corrupt, and making it fodder for countless sermons. Harvard scholar Alan Heimert argued that powerful evangelistic sermons were a major contributor not only to the rising sense of American national self-consciousness, but especially to the rising revolutionary sentiment of the 1770s, when it is estimated that as many as 80 percent of political pamphlets were reprinted sermons.14 Clearly, the connection between religious sentiments and political activity was strong.

John Adams was no stranger to questions of political theory, and his 1776 Thoughts on Government became a guide to the drafting of state constitutions.15 But Adams understood that a growing undercurrent of popular disaffection was a far more potent cause of the Revolution than any particular question of political theory. As he wrote in his retrospective view, offered to influential journalist Hezekiah Niles in 1818:

The Revolution was effected before the War commenced. The Revolution was in the Minds and Hearts of the People. A Change in their Religious Sentiments of their Duties and Obligations. While the King, and all in Authority under him, were believed to govern, in Justice and Mercy according to the Laws and Constitutions derived to them from the God of Nature, and transmitted to them by their Ancestors—they thought themselves bound to pray for the King and Queen and all the Royal Family, and all the Authority under them, as Ministers ordained of God for their good. But when they Saw those Powers renouncing all the Principles of Authority, and bent up on the destruction of all the Securities of their Lives, Liberties and Properties, they thought it their Duty to pray for the Continental Congress and all the thirteen State Congresses, &c.16

The Declaration, then, needs to be understood as a great river of oratory that is fed by various streams, a document that holds together a variety of perspectives by the forcefulness and skill of its rhetoric and by the demands of the moment in which it appeared. Its enduring appeal as it approaches its 250th anniversary is nothing short of remarkable. A lingering question, though, and one that the coming years will have to answer is whether the elements that have increasingly faded into its background—namely, its reliance on traditional and religious factors, including a belief in the authority of nature, that previously limited the reach of its sprawling abstractions—will need to be restored in a postmodern culture that is rapidly losing touch with them.

It should be clear too that the Declaration cannot be read only or even primarily as a freestanding document. It needs the nourishing soil of those concrete, limiting factors drawn from its history and its immediate context if it is to retain its full potency. We need to recover the passionate immediacy of the document, which Jefferson’s words to Lee can help us do. This was not a seminar paper. This was a work of political rhetoric, composed at a time of immense urgency and addressing itself to fires of controversy, drawing upon the multiple streams of thought and sentiment that made up the American mind. Jefferson set out to draft a message that could command the full range of ideas and sentiments that were extant in a revolutionary moment, but it did so in a way that fortified and unified the Patriot cause in such a way that even wealthy and well-placed men found themselves willing to pledge “our Lives, our Fortunes and our sacred Honor” to the cause of liberty.

Fulfilling the Revolution’s Objectives

But declaring independence was the easy part. Prevailing in a war of independence against the greatest military power in the world was much harder. Without the brilliant and indefatigable military leadership of George Washington and the indispensable assistance of America’s French allies, it could not have been accomplished.

Hardest of all was the task of creating political institutions that would endure and fulfill the objectives for which the war was fought. The newly independent Americans were determined to get along without a monarch and to demonstrate the feasibility of republican self-rule. But how to do it? Those among the Founding generation who knew about the history of previous republics, especially those in classical antiquity, knew that the single most common characteristic of a republic was its instability. Everything depended on the virtuous character of the citizenry, on their willingness to live as George Washington had done and place the public’s well-being above their own personal interests. Such civic virtue was exceedingly rare and hard to sustain in a whole society.

Declaring independence and winning a war against the world’s greatest colonial power to secure it: These were great achievements. But those achievements would count for little if it were not possible to devise a form of government that could fulfill the aspirations that had fired the Revolution in the first place while providing the unity needed to carry out the functions of a true national government, and it was not obvious how that could be accomplished. Remember that the Declaration had said only that the colonies were now “Free and Independent States,” having “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.” Were they doing this together or separately? How was it possible for the newly born states to be united while being free and independent?

While the war was going on, this question had not yet become urgent. There had not even been a national constitution properly in place during most of the war years. The Articles of Confederation had been drafted in 1777 but had not been ratified by all the states until 1781. It mattered very little; the Continental Congress had already been operating as if the Articles were in place anyway, so their formal adoption did not change much. Almost everyone agreed that the states should continue to be the principal sources of political power and authority, guarantors of individual rights, and exemplars of the principles of separation of powers, which they employed to protect against abuses of power by any particular individuals or groups.

So what kind of national union did these “free and independent” states envision for themselves? An examination of the Articles sheds light on that question. The Articles thought of the combination of states as a “league of friendship” rather than as a firm union, let alone an incorporation of the states into some larger whole. The states came first, and their primacy was spelled out in Article II: “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”17 Each state, whatever its size, would have a single vote in Congress, and for the passage of the most important measures (currency, tariffs, military matters) either a unanimous vote or a supermajority was required. Moreover, the national government was not given any coercive tools—no courts, no executive strength, no power of taxation—that would allow it to act independently or to force the individual states to do anything they did not want to do.

In retrospect, it is easy to see why the Articles’ approach was unlikely to succeed, but it is also important to try to understand why the Revolutionary generation felt as it did. No one wanted to duplicate the same kind of centralized government from which they had just fled. That outcome was to be avoided at all costs.

The historical example of Rome haunted the early Americans for that very reason. As they saw it, the Roman Republic had become strong through the martial and civic virtues of its hardy citizenry; the Roman Empire had fallen into dissolution because of the decadence and corruption of its spoiled and self-interested inhabitants. Many Americans feared that Great Britain in the age of George III was following that same downward path, and they wanted above all else to spare America that fate.

These preoccupations blinded the Articles’ framers to the larger range of issues that a new government would have to confront if it were to be effective. They overreacted, creating for themselves an unworkable central government: one that could not conduct foreign policy, regulate interstate trade, defend the nation’s borders, or put the nation’s economic and financial house in order.

In the western frontier areas, the British refused to withdraw from the several military posts that they had established even though the terms of the Treaty of Paris had required it. Who was going to force them? In the Southwest, the Spanish similarly refused to yield their control of the Mississippi River, the commercial lifeline to the country’s midsection. Such actions were a blatant thumb in the eye of the Americans, who simply lacked the means to respond to them effectively.

That was not all. The British succeeded in badly damaging the American economy by severely restricting American imports and flooding American markets with their own low-priced manufactured goods. This came as the United States was already reeling from a postwar economic depression and a thoroughly debased currency. The sharp decline in commodity prices meant that debtors, especially farmers, suddenly found themselves without enough income to meet their fixed obligations, including the mortgages on their property. Foreclosures on mortgaged property became more and more common. Debtors pleaded for relief in the form of credit extension and currency inflation—at the same time that bankers and politicians were trying to pay down debts and stabilize the currency. Conditions were ripe for an eruption. In several places, desperate mobs attempted to stem the tide of foreclosures by force, blocking courts from meeting and preventing them from doing their business.

One particularly notable uprising took place in western Massachusetts in the summer of 1786 when Revolutionary War veteran Daniel Shays led a march on Springfield to shut down the state supreme court and then attack the Springfield arsenal. Although the incident died down quickly and had little lasting effect in Massachusetts, it was widely noticed by some of the nation’s leaders, who saw it as an alarming indication that the country was coming apart. A worried George Washington feared, as he put it in a letter to James Madison on November 5, 1786, that the new nation was tearing apart at the seams:

No Morn ever dawned more favourable than ours did—and no day was ever more clouded than the present! Wisdom, & good examples are necessary at this time to rescue the political machine from the impending storm…. Without some alteration in our political creed, the superstructure we have been seven years raising at the expence of much blood and treasure, must fall. We are fast verging to anarchy & confusion!18

The deficiencies of the Articles had long been apparent; Shays’ Rebellion gave a sense of urgency to the task of addressing those deficiencies. As Washington wrote to John Jay of New York on August 1, 1786:

Your sentiments, that our affairs are drawing rapidly to a crisis, accord with my own. What the event will be is also beyond the reach of my foresight. We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without the intervention of a coercive power. I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner, as the authority of the different state governments extends over the several States.19

Even as Washington wrote to Jay, plans were afoot, spurred by Washington’s brilliant young aide Alexander Hamilton, to bring together “a Convention of Deputies from the different States, for the special and sole purpose of [devising] a plan for supplying such defects as may be discovered to exist” in the Articles.20 That convention would finally gather in Philadelphia on May 25, 1787, and nearly four months later, on September 17, would emerge from its deliberations with an entirely new Constitution for the United States. A challenging path to ratification lay ahead, but there was good reason for guarded optimism about what this Convention had achieved.

The Caliber of the Founders

Catherine Drinker Bowen’s widely read and justly popular 1966 book on the Constitutional Convention was extravagantly titled Miracle at Philadelphia, and yet the title hardly seems an exaggeration.21 The high caliber of the men who represented the respective states at the Constitutional Convention was staggering, bordering on the miraculous, particularly given how young they were with an average age of 42. Washington, by then 55 years old, was the unanimous choice to preside over the deliberations, and Benjamin Franklin, then a spry 81, was an active delegate. But most of the work was done by a handful of delegates under the age of 50, men such as James Wilson of Pennsylvania (42); Gouverneur Morris of New York (35); and, perhaps most important of all, James Madison of Virginia (36), who was by all accounts the central figure of the Convention and principal architect of the Constitution itself.

Unlike the tall and physically imposing Washington, James Madison did not look the heroic part he was given by history to play. His nickname was “Little Jemmy,” because he was such a tiny, frail man, just a little over five feet tall with a squeaky voice and a reticent, bookish manner. But no one doubted his high intelligence, his encyclopedic knowledge of political history, and his eloquence and persuasiveness in debate. His intelligence was of the rarest sort, combining the shrewdness of an effective practical politician with the reflectiveness of a philosopher. His knowledge of the European past gave him a particularly keen appreciation of the possibilities and perils inherent in the moment in which America found itself, and he intended to make the most of those possibilities and avoid the perils.

Getting the Constitution right would be a high-stakes affair. Madison and Hamilton disagreed about many things, but they were of one mind in believing that “we were now to decide for ever the fate of Republican Government; and that if we did not give to that form due stability and wisdom, it would be disgraced & lost among ourselves, disgraced & lost to mankind for ever.”22

Such weighty words reflected the urgency of the moment. They also reflected the Framers’ remarkable combination of soaring ambition, respectful duty, and practical humility. They were excited by the possibilities that lay before them and felt a determination to lay hold of them. As John Adams exulted, they were living in a time in which “the greatest law-givers of antiquity would have wished to have lived,” with a chance to establish “the wisest and happiest government that human wisdom can contrive.”23 Hence, they were willing to expand their mission beyond the narrow one of merely correcting the Articles and instead to create something far better, something that could be an example to the world.

At the same time, their ambition was always tempered by prudence and sobriety. They were exceedingly careful, always mindful of the ominous example of Rome, always suspicious of the utopian turn of mind, and always intent upon keeping the frailty and imperfection of human nature in mind. They understood politics as the art of the possible and the best constitution as one built with the crooked timber of selfish humanity in mind—one that took to heart Washington’s warning not to have “too good an opinion of human nature.”

In the heated debates that emerged at the Philadelphia Convention, there was agreement about certain fundamental points of political philosophy. The new government should continue to be republican; the Convention ruled out the possibility of any kind of monarch or monarchical office. Power should never be concentrated in any one person or office but should instead be divided and widely distributed: in a Parliament or something like it; in semi-autonomous state and local governments; in common law and tradition; and in the conviction that every person possessed certain fundamental liberties and rights, the gift of God or the endowment of Nature, that no government could legitimately suppress or violate. The chief challenge of constitution-making was to ensure that these different sources of power be so arranged that they could both coexist and counter one another, ensuring that even with a more powerful national government, no one branch or faction or region would lord it over all the others.

To accomplish this, the delegates favored a federal system that would maintain a large measure of autonomy for the states while turning over to a national government only those things that had to be undertaken in common. Ideally, this federal system would reconcile opposites, combining the advantages of self-rule with the advantages of union, the cohesiveness and diversity of smaller-scale local organization with the greater resources and power of a unified national state. It would be a difficult balance to strike and even more difficult to hold.

At bottom, beneath every other consideration, the Philadelphia Convention would have to address two fundamental questions: How much power would have to be given to an expanded national government for it to be able to do the job, and how could the new Constitution ensure that this empowered national government would itself be fully accountable and would not become too powerful? Madison put it more elegantly: “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.”24

The Presidency and the “Great Compromise”

The powerful new office of the presidency represented the most striking departure of all from the decentralized Articles. The President would have responsibility for executing the laws and directing the diplomatic apparatus of the nation. He would serve as commander in chief of the armed forces. He would appoint federal judges and secretaries of executive-branch agencies. He would have the power to veto congressional legislation, and his veto could be overridden only by a supermajority of two-thirds. There was no precedent for this in the colonial experience—aside, that is, from the figure of the king.

Having just fought a war against a British king, Americans were uneasy about all forms of strong executive power. They knew they needed more of it but sought a way to keep it under control. The Convention would hold some 60 votes before the delegates agreed on the Electoral College as the method of selecting the President. But there can be little doubt that the delegates were comforted by the unspoken understanding that George Washington would become the first President, and they trusted him to establish the right kind of precedents for the office. They were right to do so.

Fierce debates also erupted over other issues, particularly the question of how representation in the Congress would be determined. Two competing approaches were under consideration. Madison’s initial plan, which came to be called the Virginia Plan, called for representation by population. The smaller states, which rightly feared that this arrangement would render them second-class citizens under the new Constitution, fought back and under the leadership of William Paterson proposed what came to be called the New Jersey Plan, which would maintain the Articles’ pattern of representation by states.

This clash was a question not only of contending interests, but also of competing principles. Representation by state, in which each state had equal representation, seemed to violate the very principle of democracy itself, rendering the votes of those in the populous states less valuable than those in the small states. Why should tiny Rhode Island have the same legislative power as large and populous Virginia? Representation by population had its problems too, though, for it violated the principle that the country was, as its very name implies, a union of states in which the states retained the “free and independent” status upon which the national polity was built.

Each side had plausible, defensible principles—and a whole lot of self-interest riding on which way the decision went. It was a divisive issue, and the Convention could have become hopelessly mired in it. The delegates eventually settled on a compromise between these two positions. This “Great Compromise,” engineered by Roger Sherman of Connecticut—who had initially favored the New Jersey Plan but changed his mind—was, like all such compromises, a political deal. Even Madison himself opposed the Compromise at first, as did Rufus King of Massachusetts and Gouverneur Morris of Pennsylvania, seeing it as favoring the smaller and less populous states. In the end, the Great Compromise was approved by only one vote.

So it was indeed a political deal consummated by wheeling and dealing on all sides, but it ended up being something much more than that. Out of the sausage-making process would emerge a fresh way of thinking about republican government. Instead of favoring one principle over another, it found a way to rise above them both by acknowledging the worthy aspects of both principles, giving both their due, and putting them into fruitful tension with one another. The key was the use of a bicameral or two-house structure patterned after the British division of Parliament into a House of Commons and an aristocratic House of Lords but adapted to a non-aristocratic republic.

In the American version, the more populous states like Madison’s Virginia would be accorded representation by population in the House of Representatives; the smaller states like New Jersey, Delaware, and Maryland would retain their equal footing in the Senate, where each state would be accorded two representatives, no more and no less, irrespective of its size or population.

To be enacted into law, legislation would have to clear both of these very different chambers with their different principles of representation and be signed by the President. The two houses would have very different characters, and that was by design. The House of Representatives would be more democratic because it was closer to the great mass of ordinary citizens with its members apportioned by population and chosen by popular vote for short, two-year terms. The Senate would be more aristocratic and somewhat shielded from the shifting winds of popular will, with its members standing for six-year terms and elected by the state legislatures rather than by the people at large.

The lower house would be a “commons,” more responsive and more popular, even rowdy, while the upper house would be, if not quite a chamber of “lords,” a more aloof and deliberative body with built-in insulation from passing enthusiasms and passions. The lower house would be entrusted with the power of introducing revenue bills; the upper house would be entrusted with foreign relations, ratification of treaties, and confirmation of executive-branch appointments.

The result of this compromise was a complex structure that was arguably better than either of the alternatives it attempted to reconcile. It quickly took its place as one of the chief elements in the Constitution’s famously intricate network of checks and balances, a system by means of which each power granted to one unit of government is kept within safe limits by countervailing powers vested in some other unit.

This pattern played out on multiple levels. The newly established national government would have unprecedented powers. However, these powers would be enumerated (spelled out) and thereby limited by the Constitution itself, and the state governments would remain strong, serving as an additional check on the national government. The national government was further checked by being subdivided into executive, legislative, and judicial branches, each of which was in competition with the others and each of which had some ways of thwarting the other branches in cases of injudiciousness or overreach. The President could reject a bill of Congress with a veto, and the Congress could override that veto by re-passing the bill with a two-thirds majority. The Congress could remove the President and other members of the executive branch through impeachment. The Senate could reject executive-branch appointments. The President could command the armed forces and negotiate treaties, but only the Congress could declare war, and only the Senate could ratify treaties. And so on.

It was very complicated, but behind all these particulars was a powerful idea: Conflict is part of the human condition and can never be eliminated; neither can the desire for power and the tendency of ambitious and corruptible men to abuse it. The cultivation of virtue in the citizenry should always be encouraged. Virtue alone is insufficient, however, to ensure stability and order in a polity made up of corruptible people. Therefore, a workable constitution has to provide a structure within which the conflicts between contending ambitions can be tamed, institutionalized, and made productive.

The quest for power can never be eliminated. Nothing is more human than that. But it can be kept within bounds. A constitution that does that is like an internal combustion engine: designed to redirect the energies released by the explosions that take place within its chambers and use those energies to drive the work of American governance and enterprise. It should be designed to work with the grain of human nature and not against it. In doing so, it should also counteract the worst tendencies of human nature rather than encourage them to grow and fester.

“A Rising and Not a Setting Sun”

This was the document that the delegates produced during four months of intense labor in Philadelphia and signed on September 17, 1787. It had not been an easy process, and not all of the delegates were entirely happy with the end result. Understanding this sentiment, Benjamin Franklin closed the Convention with a moving speech, acknowledging that while this Constitution might not be perfect and that he himself had reservations about it, he nevertheless hoped “that every member of the Convention, who may still have objections to it, would with me on this occasion doubt a little of his own infallibility—and to make manifest our unanimity, put his name to this Instrument.”25 He was asking them to make a leap of faith. Even so, there were a few, such as George Mason of Virginia, who adamantly refused the invitation and withheld their support to the bitter end.

Franklin was confident about the Constitution’s viability and future. He offered a personal aside to some other members, which was recorded for posterity by James Madison:

Whilst the last members were signing it Doctr. Franklin looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.26

Let us pause here for a moment to step back and reflect on the larger picture. Constitution Day, which we observe every September 17, is a singularly American holiday, even more unique than the Fourth of July. After all, many nations have their great leaders and laborers, their war heroes, their monuments, and their days of independence, but there is only one nation on Earth that can point with pride to a written Constitution that is, as I write these words, nearly 240 years old, a continuously authoritative expression of fundamental law that still stands at the very center of our national life.

As such, the U.S. Constitution is not merely our most weighty legal document: It is an expression of who and what we are. Other countries, such as France, have lived under many different constitutions and regimes over the centuries so that for them, the historical identity of the French people is something separable from the form of government that happens to be in power at any given time. No so for Americans, who have lived since the 1780s under one regime, a remarkable fact whose significance we hardly seem to notice—and that some even perceive to be a defect. Yes, we do revere our Constitution, but we do so blandly and automatically without troubling ourselves to know very much about it and without reflecting much about what our Constitution tells us about who and what we are.

That identity is a complicated one, and there are elements of it about which we will probably never all agree. Ties of blood and religion and race and soil are not enough to hold us together as Americans, and they never have been. We think of “diversity” as something new in American history, but in fact the conduct of American life has always involved the negotiation of profound differences among us. We are forever about the business of making a workable unity out of our unruly plurality, and our Constitution accepted both the inevitability of our diversity in such things and the inevitability of conflicts arising out of our differences. In addition, it recognized the fact that ambitious individuals are always going to be among us and that the energies of such potentially risky people need to be contained and tamed, and perhaps even made golden, by being diverted into activities that further the public good.

Hence we have a Constitution that is not, for the most part, a document filled with soaring rhetoric and lists of high-sounding principles. It is more like a rulebook for an athletic competition, a dry and functional document laying out a complex system of markers, boundaries, and rules of engagement, careful divisions of function and power that provide the means by which conflicts that are endemic and inevitable to us and to all human societies can be both expressed and contained, even made beneficial. Unlike the expansive spirit of the Declaration of Independence, the Constitution’s spirit is undeclared, unspoken; it would be revealed not through words but through the issues and events that have moved through it, carrying the unfolding demands of history.

Refuting the Critics

For more than a century, though, the Constitution has attracted severe critics. Why should it be otherwise? After all, the Constitution is built around the assumption that human life entails conflict, contention, and debate. Why should questions about it be forbidden? Certainly men like Jefferson, who expressed a belief in the need for perpetual reform and occasional revolution and insisted that “the earth belongs to the living,”27 would have been unsympathetic to any veneration of the Constitution. In fact, its openness to questioning and amendment is one of the chief sources of its durability.

But Progressive reformers such as Woodrow Wilson believed the Constitution was outmoded and saw its extensive checks and balances as mechanical impediments to governmental efficiency.28 In many ways, the battles of the present day over what is called “the administrative state” reflect that same criticism of the Constitution and an impatience with the many checks on quick and decisive action that the Constitution imposed. To which it can be pointed out that the Progressive ideal of centralized governance by technocratic experts seeks to inhibit and suppress the very kinds of conflict that the Constitution assumes to be the inevitable product of a free and diverse society made up of citizens, not subjects, with divergent ideas and divergent interests.

How to accommodate all of that? It is the chief political challenge facing the modern Republic—and a formidable challenge at that. It might not be too much of a stretch to point out the resemblance between the state that Progressive reform sought to bring into being and the state that the American Revolutionaries sought to escape. President Calvin Coolidge expressed this view well in a 1926 speech countering those who, like Wilson, contended that the conditions of modern life required us to move beyond our Founding documents: “Those who wish to proceed in that direction can not lay claim to progress,” Coolidge warned. “They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.”29

These are words that Americans a century later, living in the second quarter of the 21st century, may be ready to hear with new ears. Perhaps it is not the political vision of the Constitution that is outmoded, but instead the political vision of governance by an enlightened technocratic elite. Perhaps the foundation that the Founders knew they were creating still remains the best foundation for a free, prosperous, and diverse society.

Wilfred McClay

Notes