Documenting America: Making The Constitution

By David Todd

The development of the U.S, Constitution, in response to the failing Articles of Confederation, happened in a few years following the Revolution. This book looks at a number of key documents from those years: analysis of the problem, pre-Convention debates, the Convention deliberations, post-Convention debates in the press and in State conventions, and the Bill of Rights. The discussions of those days are then tied to an issue we still deal with in the 21st Century.

• Language: English
• Publisher: David Todd
• Release date: Sep 4, 2019
• ISBN: 9780463425688

David Todd

David Todd is a civil engineer by profession (37 years), a genealogist by avocation, an environmentalist by choice, and a writer by passion. He grew up in Rhode Island, where he attended public schools in Cranston and then the University of Rhode Island. In his adult life he has lived in Kansas City, Saudi Arabia, Asheboro North Carolina, Kuwait, and now northwest Arkansas since 1991. Along the way he acquired a love for history and poetry. He currently works at CEI Engineering Associates, Inc. in Bentonville, Arkansas. He is Corporate Trainer for Engineering, which includes planning and conducting training classes and mentoring younger staff. He is the senior engineer at the company, and hence gets called on to do the more difficult projects that most of the younger engineers don't feel confident to tackle. He has recently worked on a number of floodplain studies and mapping projects. He is a registered engineer in three states, a Certified Professional in Erosion and Sediment Control, and a Certified Construction Specifier (certification lapsed). He has been actively pursuing genealogy for fifteen years, having done much to document his and his wife's ancestry and family history. He has been writing creatively for eleven years.

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Documenting America

Making The Constitution

Documenting America:

Making The Constitution

David A. Todd

August 2019

Documenting America

Making The Constitution

Copyright 2019 by David A. Todd

All rights reserved. This book contains a combination of quotes from material in the public domain, and the copyright holder’s original material. Copyright applies only to author’s original works. No claim is made herein to copyright of public domain material. Copyright holder’s original work is copyrighted, however. Except as permitted under U.S. Copyright Law at the time of publication, no part of these words may be reproduced, distributed, or transmitted in any form without the prior, written permission of the copyright holder.

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Documenting America:

Making The Constitution

Table of Contents

Introduction

1 Not Intoxicated With Passion – Alexander Hamilton on the mistreatment of loyalists

2 Present Ease and Wealth – John Adams on commerce provisions in the Articles

3 Strong Circumstances and Strong Government – John Jay

4 Perfection Falls Not to the Share of Mortals – George Washington

5 The Rights Hereby Asserted – Thomas Jefferson: Virginia Statute of Religious Freedom

6 The Enemies of our Liberties – Daniel Gray and Abigail Adams on Shay’s Rebellion

7 No Liberty At All – Noah Webster on the Diseases of the Body Politic

8 More Enlarged Power – Alexander Hamilton of the Annapolis Convention

9 The Good Sense of the People – Thomas Jefferson

10 The Revolution Is Not Over – Benjamin Rush

11 An Aggregate Sovereignty – James Madison

12 The Blessings of a Rational Government – Joel Barlow

13 A Clear Principle of Free Government – James Madison

14 Treason To Our Trust – James Madison

15 The True Ground of Compromise – James Madison

16 A Rising Sun – Benjamin Franklin

17 Preserving The Rights Of The People – Richard Henry Lee

18 Think, Speak, Act, and Assert – Clinton & Hamilton

19 Cherish and Preserve the Union – James Madison

20 Dependent On Your Present Conduct – Anonymous

21 When Our Habitations Were In Flames – John Jay

22 Errors Into Which They Had Fallen – James Madison

23 A Certain Degree of Knowledge – James Madison

24 Servants of the People – James Madison

25 During Good Behavior – Alexander Hamilton

26 Unprecedented in a Free Country – Anonymous

27 An Inactive, Unaccountable Stupor – Mason, Henry, Pendleton

28 Somewhere Between the Extremes – Massachusetts Debate

29 The Most Dangerous Aristocracy – William Lenoir

30 The Most Honorable and Patriotic Motives – Jefferson and Madison

31 The Happy Compromise of Interests – Thomas Jefferson

32 Fortify the Rights of the People – James Madison on the Bill of Rights

About the Author

Works by David A. Todd

Introduction

The forming of the United States’ current government in 1787-1789 followed a brief period of difficulty after the end of the Revolution. The history of these years, from 1783 to about 1790, is particularly well-documented in the archives and annals of our nation. Sources aren’t lacking. Commentary on sources is abundant. Availability of all this is amazing. The problem is not a dearth but a surfeit of documents.

As I gathered materials for this book, I had many difficult choices to make. Excellent documents that described a topic very well had to be set aside simply because I found so many of them. For every discussion item concerning the Constitution I found a half-dozen source documents. Madison, Jefferson, Franklin, Washington, Jay, Hamilton, and others all published something about it—or wrote a letter to someone—that is in an archive somewhere, usually a digitized archive. To keep this book from ballooning into something unmanageable, most of this went to the cutting room floor.

As I assembled and began to edit the documents I used, I found that most were full of nuggets that I wanted to include. Excerpting the sources down to a length I typically use in these books was more difficult than I expected. I want readers to have the raw, original words of our Founders, not so much my words. Yet, I’d take a 4,000-word source document, maintain the most important thousand words, pull other segments out of it to, get rid of the surplus, and find I still had 2,500 words. They were good words. We should read and know what the original authors had to say. But my goal is to give part of those words as an inducement for readers to find and read the originals. As they are so easily found with simple search engine tools, I don’t give an internet address on where to find them.

One difficult decision was what to do with the now somewhat archaic language of that era. The writers’ use of punctuation is different from ours; they would fail a 5th grade spelling test today, and they seem to have had little sense of what a paragraph is for. For the most part, I modernized punctuation and paragraphs but left the spelling alone. I believe the documents are readable as I present them. Oh, yes, I also split up many of their sentences that ran on seemingly forever.

As to my own words, I trust the reader will find them useful. Tying the old documents to an issue we face today was sometimes easy, sometimes difficult. I apologize for any repetition in this, which is a hazard when dealing with a brief time in history as opposed to a survey of our entire history.

Those wishing to view and read source documents will do well to go to any of these sites and spend much time searching or browsing there:

Teaching American History

Founders Online

Library of Congress online

July 1, 2019

Bella Vista, Arkansas

Return to Table Of Contents

Chapter 1

Not Intoxicated With Passion

Alexander Hamilton

Many reasons existed for being dissatisfied with the Articles of Confederation and how they formed the central government. The Articles had worked when the nation was at war. Once peace was established, it turned out the Articles weren’t so great after all. Alexander Hamilton gave the following as one of his reasons for thinking a change of government was in order.

… It is…a common observation, that men bent upon mischief are more active in the pursuit of their object than those who aim at doing good. Hence it is in the present moment we see the most industrious efforts to violate the constitution of this state, to trample upon the rights of the subject, and to chicane or infringe the most solemn obligations of treaty, while dispassionate and upright men almost totally neglect the means of counteracting these dangerous attempts....

The persons alluded to…endeavour to put in motion all the furious and dark passions of the human mind. The spirit of Whiggism, is generous, humane, beneficent and just. These men inculcate revenge, cruelty, persecution, and perfidy. The spirit of Whiggism cherishes legal liberty, holds the rights of every individual sacred, condemns or punishes no man without regular trial and conviction of some crime declared by antecedent laws, reprobates equally the punishment of the citizen by arbitrary acts of legislature, as by the lawless combinations of unauthorised individuals. While these men are advocates for expelling a large number of their fellow-citizens unheard, untried; or if they cannot effect this, are for disfranchising them, in the face of the constitution, without the judgment of their peers, and contrary to the law of the land.

The 13th article of the [New York] constitution declares, "that no member of this state shall be disfranchised or defrauded of any of the rights or privileges sacred to the subjects of this state by the constitution, unless by the law of the land or the judgment of his peers." If we enquire what is meant by the law of the land, the best commentators will tell us that it means due process of law, that is, by indictment or presentment of good and lawful men, and trial and conviction in consequence.

… Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure…it may soon confine all the votes to a small number of partizans, and establish an aristocracy or an oligarchy. If it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.

…

These men not only overleap the barriers of the constitution without remorse, but they advise us to become the scorn of nations, by violating the solemn engagements of the United States. They endeavour to mould the Treaty with Great Britain, into such form as pleases them and to make it mean any thing or nothing as suits their views. …

But let any man of sense and candour read the Treaty, and it will speak for itself. The…sixth [clause] is as positive as words can make it. "There shall be no future confiscations made, nor prosecutions commenced against any…persons…by reason of the part which…they may have taken in the present war; and no person shall, on that account, suffer any future loss or damage, either in his person, liberty, or property."

… The sound and ingenuous construction of the two articles taken collectively, is this: that where the property of any persons, other than those who have been in arms against the United States, had been actually confiscated and themselves proscribed, there Congress are to recommend a restoration of estates, rights and properties; and with respect to those who had been in arms, they [Congress] are to recommend permission for them to remain a twelvemonth in the country to solicit a like restoration: But with respect to all those who were not in this situation…they were to be absolutely secured from all future injury to person, liberty or property.

To say that this exemption from positive injury does not imply a right to live among us as citizens is a pitiful sophistry. It is to say that the banishment of a person from his country, connexions and resources (one of the greatest punishments that can befal a man) is no punishment at all.

… Such fraudulent subterfuges are justly considered more odious than an open and avowed violation of treaty.

Does not the act of confederation place the exclusive right of war and peace in the United States in Congress? Have they not the sole power of making treaties with foreign nations? Are not these among the first rights of sovereignty, and does not the delegation of them to the general confederacy so far abridge the sovereignty of each particular state? ... It follows that Congress and their Ministers acted wisely in making the treaty…and it follows from this that these states are bound by it and ought religiously to observe it.

… [E]ach party to hold what it possesses is the point from which nations set out in framing a treaty of peace. If one side gives up a part of its acquisitions, the other side renders an equivalent in some other way. What is the equivalent given to Great Britain for all the important concessions she has made? She has rendered the capital of this state and its large dependencies. She is to surrender our immensely valuable posts on the frontier, and to yield to us a vast tract of western territory…by which we shall command almost the whole furr trade. She renounces to us her claim to the navigation of the Mississippi and admits us a share in the fisheries, even on better terms than we formerly enjoyed it. As she was in possession by right of war of all these objects…they are by the laws of nations to be considered as so much given up on her part. And what do we give in return? We stipulate that there shall be no future injury to her adherents among us. How insignificant the equivalent in comparison with the acquisition! A man of sense would be ashamed to compare them: A man of honesty, not intoxicated with passion, would blush to lisp a question of the obligation to observe the stipulation on our part.

… The treaty must stand or fall together. The wilful breach of a single article annuls the whole. Congress are appointed by the constitution to manage our foreign concerns. The nations with whom they contract are to suppose they understand their own powers and will not exceed them. If they do it in any instance, and we think it proper to disavow the act, it will be no apology to those with whom they contract that they had exceeded their authority. One side cannot be bound unless the obligation is reciprocal.

… Viewing the subject in every possible light, there is not a single interest of the community but dictates moderation rather than violence. That honesty is still the best policy, that justice and moderation are the surest supports of every government, are maxims, which however they may be called trite, at all times true, though too seldom regarded, but rarely neglected with impunity. Were the people of America with one voice to ask, What shall we do to perpetuate our liberties and secure our happiness? The answer would be, govern well and you have nothing to fear either from internal disaffection or external hostility. Abuse not the power you possess, and you need never apprehend its diminution or loss. …

Alexander Hamilton, A Letter from Phocion to the Considerate Citizens of New-York On the Politics of the Day (New York, Printed by Samuel Loudon, 1784)

While the constitutional issue that lurks behind this letter to the public is not explicitly stated by Hamilton, it’s there. The Treaty of Paris, signed September 3, 1783, officially ended the hostilities of the Revolutionary War. The British army and navy evacuated New York City within the month. The former colonists set about to re-establish self-government, and problems arose at the start.

Too many state and local officials wanted to punish those who, rather than actively participate in the Revolution, had remained loyal to Great Britain. I have seen analyses suggesting that, of the American population, perhaps one-third were pro-revolution, one-third wished to remain under British rule, and the other third were along for the ride, feeling they could live, work, and pursue happiness under whatever power governed. [See, for example, The American Revolution Considered as a Social Movement by J. Franklin Jameson, wherein he looks at contemporary support for the Revolution by various groups.] Thus, if the New York legislature and the New York City government took their measures to an extreme, as many as two-thirds of the population could be deemed traitors and first, be denied of their property, then be expelled, sent back to Britain in exile.

The New York governing bodies began to work along these lines. There was just one problem: The Treaty of Paris had specific clauses that prohibited taking revenge on those who had remained loyal to Britain during the war and who now chose to remain in the new nation. Clause 5 of the treaty, concerning restoration of property confiscated during the war, was advisory. Clause 6, concerning additional, post-war confiscation, wasn’t advisory; it was mandatory.

Pftt, said the government in New York. That doesn’t apply to us. We didn’t negotiate a treaty with Britain. We’ll do what we want. The treaty had been negotiated by the colonies as a unit and ratified by the national congress.

Surprisingly, Hamilton didn’t make that argument. Instead he talked about fairness; about law; about historical instances where rulers didn’t take revenge (for examples Roman emperor Augustus, British Queen Elizabeth) and went on to glorious, historically significant reigns. Now was the time for Hamilton’s home state to consider these precedents and go easy on those who did nothing other than sit back and not actively participate on either side in the war. Avoidance of retribution, however, requires leaders who are not intoxicated with passion. New York didn’t have enough of those.

Hamilton indirectly made the argument that this was not a State concern; it was a Federal concern. I see in the mere fact that Hamilton had to address this that the tension between the sovereignty of the States and the necessity of a Federal government with some degree of strength and authority was very much a matter to be considered. This was also a topic in an exchange of letters between John Jay and George Washington, [See Chapters 3 and 4] concluding that the actions of the states violated the treaty.

Partly because of this issue in New York, wise people began to realize that the Articles of Confederation, quite adequate during wartime, when the thirteen colonies were pulling together, were woefully inadequate during peacetime. The Federal government could make treaties, but how could it enforce them? And they couldn’t make treaties of commerce unless the States authorized them to do so. The states each regulated their own commerce, so how could agreements for foreign trade work?

The times the new nation found itself in were trying. A great experiment had begun. But not everyone in leadership had a cool head. Hamilton wanted to see clear-headed leaders exert themselves more forcefully. It was time to get down to the business of governing.

Today, in an era of 24-hour news, of amateur journalists making their own news broadcasts and broadsides, and sometimes making up news from whole cloth, we find ourselves with passion all around us. Passions for one side of an issue, passions for another side. We don’t find a lot of middle ground, not a lot of wanting to hear the other side.

Among those not in leadership, debate rarely turns on discussion of the issues. Knee-jerk reactions, statements of passion without reason, escalation of bad phrasing that degenerates into ad hominem attacks is what passes for debate. Alas, this is true even for those in leadership. You listen to news in hopes of hearing intelligent debate, and almost always come away disappointed. You understand seeing this sort of thing on social media, but in the news?

What’s to become of us? We are around 240 years into the experiment of self-governing. The results have been good so far, but I don’t know that it will last. I fear we have become too intoxicated with passion.

Return to Table Of Contents

Chapter 2

Present Ease and Wealth

John Adams

The new nation, the United States of America, had great potential to become a world power. Thirteen separate states, each with their own strengths, stood poised to build wealth and influence in the world. What could possibly hold them back? John Adams, our minister to our recent enemy, Great Britain, had some ideas about that.

…[T]he British Cabinet have…doubts whether Congress have power to treat of commercial matters, and whether our States should not seperately grant their full powers to a minister. I think it may be taken for granted that the States will never think of sending seperate ambassadors or of authorising directly those appointed by Congress. The idea of thirteen plenipotentiaries meeting together in a Congress at every court in Europe, each with…full power and distinct instructions from his State, presents to view such a picture of confusion, altercation, expence and endless delay as must convince every man of its impracticability.

Neither is there less absurdity in supposing that all the States should unite in the seperate election of the same man, since there is not, never was, and never will be a citizen whom each State would seperately prefer for conducting the negotiation. It is equally inconceivable that each State should seperately send a full power and seperate instructions, to the ministers appointed by Congress. What an heterogeneous mass of papers full of different objects, various views, and inconsistent and contradictory orders, must such a man pull out of his Porte Feuille from time to time to regulate his judgment and his conduct. He must be accountable…to thirteen different tribunals for his conduct: a situation in which no man would ever consent to stand…. I don’t believe that any State should ever wish for such a system.

I suppose too, that the Confederation has already settled all these points, and that Congress alone have authority to treat with foreign powers and to appoint ambassadors and foreign ministers, and that the States have seperately no power to do either. Yet it is plain…that the British Cabinet have conceived a different opinion. This is to be accounted for only by conjecturing that they have put an erroneous construction on the Limitation, Restriction or Exception [clause] in the Article of our Confederation, which gives to Congress the power of appointing ambassadors and making treaties. This Limitation is confined to treaties of commerce. All others Congress have full power to make. From this Limitation, however, will probably arise a great deal of difficulty and delay to me. If the British ministry wish and seek