A Brilliant Solution: Inventing the American Constitution

By Carol Berkin

Historian Carol Berkin's A Brilliant Solution: Inventing the American Constitution is a rich narrative portrait of post-revolutionary America and the men who shaped its political future.

"Just as the Constitution was a brilliant solution to the problems of the 1780s, Carol Berkin's book is a brilliant account of the making of that constitution. Written with great verve and clarity, it nicely captures all the contingency and unpredictability in the framing of the Constitution."—Pulitzer Prize-winning author Gordon S. Wood

Though the American Revolution is widely recognized as our nation's founding story, the years immediately following the war — when our government was a disaster and the country was in a terrible crisis — were in fact the most crucial in establishing the country's independence. The group of men who traveled to Philadelphia in the summer of 1787 had no idea what kind of history their meeting would make. But all their ideas, arguments, and compromises — from the creation of the Constitution itself, article by article, to the insistence that it remain a living, evolving document — laid the foundation for a government that has surpassed the founders' greatest hopes.

Revisiting all the original historical documents of the period and drawing from her deep knowledge of eighteenth-century politics, Carol Berkin opens up the hearts and minds of America's founders, revealing the issues they faced, the times they lived in, and their humble expectations of success.

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Oct 20, 2003
• ISBN: 9780547537818

Carol Berkin

Carol Berkin is Presidential Professor of History, Emerita, of CUNY. She received her bachelor's degree from Barnard College and her Ph.D. from Columbia University where her dissertation received the Bancroft Award in 1972. She has written extensively on women’s history and on the American Revolution, the creation of the Constitution, and the politics of the early Republic. She has appeared in over a dozen documentaries on colonial, revolutionary, and civil war history, given lectures on her specialties at major universities in the United States and England.

Book preview

First Mariner Books edition 2003

Copyright © 2002 by Carol Berkin

Introduction copyright © 2017 by Carol Berkin

All rights reserved.

For information about permission to reproduce selections from this book, write to [e-mail] or to Permissions, Houghton Mifflin Harcourt Publishing Company, 3 Park Avenue, 19th Floor, New York, New York 10016.

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The Library of Congress has cataloged the print edition as follows:

Berkin, Carol.

A brilliant solution: inventing the American Constitution/Carol Berkin.—1st ed.

p. cm.

Includes index.

ISBN 0-15-100948-1 ISBN 0-15-602872-7 (pbk.)

1. United States. Constitutional Convention (1787) 2. United States—Politics and government—1783–1789. 3. Statesmen—United States—History—18th century. 4. United States. Constitution—Signers. 5. Constitutional history—United States. I. Title.

E303.B47 2002

973.3'18—dc21 2002005648

eISBN 978-0-547-53781-8

v3.1017

To the "Sunday Morning Dissertation Salon"—

Angelo Angelis, Kathy Feeley, Cindy Lobel, and Phillip Papas

Introduction

IT IS THE HISTORIAN’S CURSE, or blessing, to look to the past to better understand the present. Today, as our country faces a growing number of challenges, from terrorism and foreign aggression, to the renewed conflict between states’ rights advocates and supporters of federal authority, to the need for a frank discussion of race, my own thoughts turn to the summer months of 1787 when fifty-four men gathered to confront the challenges facing their new nation. Their problems were not identical to ours, for the world they lived in was far different from our own. Yet perhaps we can learn from the manner in which they confronted those challenges and what principles guided them in their task. Perhaps too, it will allow us to consider what to preserve and what to amend of their handiwork in order to aid us in resolving the issues of our day.

What propelled these men from twelve of the thirteen existing states to journey to Philadelphia in May of 1787? It was definitely not optimism or enthusiasm for the task ahead; instead, it was anxiety, urgency, and a pressing sense of responsibility. They were keenly aware that the ink was barely dry on the peace treaty securing American independence, yet the survival of their experiment in self-government was in grave doubt. The country was suffering from a host of problems: a lingering postwar economic depression; powerful foreign governments that eyed American territory greedily; high-seas attacks on American ships and unsatisfactory commercial relations with European nations; continuing Indian warfare in the West and along the southern borders; domestic uprisings; and the damaging return of old rivalries and commercial competition among the states. Perhaps most humiliating, the country could not repay its wartime debts either to foreign allies or to its own citizens and veterans. In short, the country was in crisis.

The lawyers and merchants and plantation owners at the Philadelphia convention were not dreamers but realists: they knew that the existing Constitution, the Articles of Confederation, was intended only as a league of friendship among thirteen sovereign states, not as a union of their people. They knew its Congress lacked the authority to address the postrevolutionary crises it faced. Although they had been tasked with proposing amendments to the Articles, they chose a far more radical reenvisioning of the American government. Over the next five months, they drafted a new constitution, one that created a unified nation and a government with sufficient power to address these crises. Although they had done their work behind closed doors, they did not intend to impose their plan on their countrymen by sword or gun; they were not conspirators plotting a coup d’état. They would submit this new constitution to the judgment of the citizens.

Although a reading of the convention’s debates and discussions sometimes suggests a chaotic and contentious atmosphere, the delegates did share a goal: to endow a new government with basic but essential powers. Among these were the power to tax and raise revenue, the right to regulate commerce, the means to ensure law and order and protect the integrity of the country’s borders, and the authority to create a uniform currency. In short, they wanted to create what eighteenth-century men called an energetic government.

They had a template to work from in James Madison’s Virginia Plan. This plan followed closely the Anglo-American model familiar to most Americans. Its division of functions and powers among three distinct branches—executive, legislative, and judicial—could be found in the British government, the colonial governments, and the new state governments. Much of the debate and discussion over the summer of 1787 focused on clarifying the powers of each branch and spelling out their relationship to one another.

The source of the new government’s authority was as critical as the specific powers it would be granted or the structure it would assume. The delegates were committed to establishing a republic, and in a republic there could be no king, no queen, no dynasty of rulers. Instead, the ultimate sovereign must be the citizenry itself. The preamble to the new constitution made this clear: the government acknowledged and answered to but one sovereign, We the People. It was this declaration of the people’s sovereignty that made their constitution a revolutionary document and made their young country a grand experiment in representative government.

The delegates were keenly aware that establishing such a republic carried with it great risk. As students of history, they knew that the republics of the past were short-lived. They had been destroyed from within, by the inevitable greed, lust for power, and corruption of those entrusted with governance, or by the moral decay, apathy, or unchecked passions of the people they governed. The delegates could not guarantee the survival of their own republic, but they could build into its structure a complex set of checks and balances to protect, for as long as possible, against the human weaknesses history told them resided in all men. What is remarkable, and admirable, is that they embedded these restraints even though they knew that they would be the men chosen to hold office in the new government. They had the humility to fear themselves and the wisdom to impose restrictions on what they considered their baser impulses.

Most of the remaining time at the convention was spent devising the criteria and the mechanisms by which legislators and the executive would be selected. Some of the problems that arose were logistical. For instance, the mechanism by which the president would be elected bedeviled the convention until its last weeks. Other problems, however, laid bare competing regional interests and competing interests between the larger states and the smaller ones. And, although there were enthusiastic nationalists in every state, there were many delegates who were reluctant to cede too much of their state’s autonomy and authority to a centralized government. It was often the case that solving one problem seemed to create a host of new ones. If it was agreed, for example, that the number of seats in the lower house of Congress would be allotted based on the population of a state, who would be counted for this purpose and who would be ignored? One of the most intense conflicts pitted nationalists like Madison and Hamilton against men eager to ensure that the states, as states, had a power base in the new government. The decision that senators would be appointed by state legislatures was a defeat for the nationalists but a victory for southern delegates already concerned that their system of slavery had to be protected. At the same time, the insistence of small-state delegates that every state have the same number of senators carried over into the new government the problematic premise of the Confederation, that the government was a league of friendship among equal states.

An astute modern reader of these tense debates over the makeup of the Congress will see in them the divisive nature of the single innovation of the Constitution: federalism. While checks and balances diffused power among the branches of the Constitution’s government, federalism dispersed power between two levels of government: the central government and the state governments. This division of power has served as a primary engine of conflict in our national history, from the Virginia and Kentucky resolutions, to the Hartford Convention, to the Nullification Controversy, the Civil War, and the battles over civil rights and cultural norms in our own lifetime. The legacy of federalism is the constant tug-of-war between state sovereignty and federal authority.

Despite the serious debates and sometimes fierce arguments that arose during the construction of the proposed new government, the process was largely one propelled by compromise. On critical issues such as the determination of representation in the House and the Senate or the rules governing population count in the states, opposing sides hammered out a compromise that gave some satisfaction to both. What drove these compromises was their urgency of purpose: these men had come to Philadelphia to save their country from internal wars, external invasion, or economic collapse. There was no place for ideologues or a winner-take-all mentality in their deliberations. As Alexander Hamilton would later say, no one got everything he wanted, and no one got nothing he wanted; everyone got something he wanted.

The framers of the Constitution had no illusions that the document they had produced was perfect. Some felt it did not empower the new government enough; some feared it had given that government too much power. All hoped that the checks and balances they had included would be strong enough to deter the rise of oligarchy or tyranny. These men did not purport to be visionaries; they knew they could not read the future, and they did not focus their deliberations on what the country and its citizens might need or want in the decades that would follow. Their goal was to address the immediate crises facing that country—and they knew that, in the end, their failures might well exceed their successes. In short, they were not crippled by hubris. Although we have often spoken of them as demigods or geniuses, they did not make such a claim for themselves. Their admirable modesty can be seen in the inclusion in the Constitution of an amendment process that conceded their fallibility and invited future generations to adapt the government to their needs.

In the centuries that followed ratification of the Constitution, Americans have in fact found it necessary to amend or to reinterpret this founding document. These revisions began almost at once. During the first session of Congress, ten amendments, designed to secure the rights and liberties of the citizens, were passed and ratified by the states. Procedural adjustments soon followed. The election of 1800 prompted Congress to revise the method of electing the president. Six decades later, a war-weary generation would use the amendment process to end slavery and give political voice to African American men. In the early twentieth century, the nineteenth amendment was added to expand the suffrage to women. Taken together, the fifteenth and nineteenth amendments transformed citizenship from a privilege to a birthright and made the republic more democratic.

Many of the changes to our government structures and to our understanding of the role of the federal government in our lives have been effected outside the amendment process. The establishment of a two-party political system, the emergence of seniority as an operating principle within Congress, and the tradition of the filibuster are all instrumental rather than formal adaptations of the Constitution. Over time, Supreme Court decisions have altered the social and legal landscape of the nation, and protest and reform movements had forced new understandings of the written Constitution.

I am often asked by students and by lecture audiences, What would the founders think of America today? I always answer that the convention delegates would undoubtedly be amazed by most of the changes in our political and social fabric. Not even the one true visionary among them, Alexander Hamilton, could have imagined that the United States would lead the free world, that an African American man would be elected president, or that a woman could be a candidate for this highest office. They would be dazzled by our technology and perhaps overwhelmed by the global society it has helped to create. But they would not be surprised that the social and cultural topography of the United States in the twenty-first century defines a world so different from their own. They were, after all, students of history, and thus they knew that change was an imperative as powerful as continuity. A Brilliant Solution was written in hopes that understanding the events of 1787 will help us determine what changes are now needed and what continuities must be cherished.

Carol Berkin

New York City, 2017

Chapter One

The Call for a Convention

Our present federal government is a name, a shadow

THE YEAR WAS 1786. It was the tenth anniversary of the Declaration of Independence and the third year of life in a new nation, but political leaders everywhere feared there was little cause to celebrate. Dark clouds and a suffocating gloom seemed to have settled over the country, and these men understood that something had gone terribly wrong. From his plantation in Virginia, George Washington lamented the steady stream of diplomatic humiliations suffered by the young Republic. Fellow Virginian James Madison talked gravely of mortal diseases afflicting the confederacy. In New Jersey William Livingston confided to a friend his doubt that the Republic could survive another decade. From Massachusetts the bookseller turned Revolutionary strategist, Henry Knox, declared, Our present federal government is a name, a shadow, without power, or effect. And feisty, outspoken John Adams, serving as the American minister to Great Britain, observed his nation’s circumstances with more than his usual pessimism. The United States, he declared, was doing more harm to itself than the British army had ever done. Alexander Hamilton, John Jay, James Monroe, Robert Morris—in short, men from every state—agreed that a serious crisis had settled upon the nation. The question was could they do anything to save their country?

It seemed like only yesterday that these same men, along with Americans everywhere, had greeted the future brightly. In 1783 Americans had looked forward confidently to reaping the benefits of independence. British political oppression, with its threat to natural rights and traditional liberties, had come to an end, and with it the challenge to America’s most dearly held principle, No taxation without representation. In every colony turned state, lawmaking was safely in the hands of a representative assembly, and a guarantee of citizens’ rights was written into most state constitutions. British economic oppression had ended as well. Free from the restraints imposed by British navigation, or trade, laws, American shippers, farmers, and planters looked forward to selling tobacco and wheat directly to foreign nations, and entrepreneurs looked forward to manufacturing finished products for sale to markets abroad. New Englanders were equally optimistic, for John Adams’s dogged persistence had won them the right to fish the outer banks of Newfoundland. Independence also meant that the rich farmlands west of the Appalachians were at last open to settlement, good news for ordinary farmers and perhaps even better news for major speculators like George Washington, the Lees of Virginia, and even Benjamin Franklin, who owned shares in large land companies.

Unfortunately, each of these blessings soon proved to have a darker side. True, the restrictions and injustices suffered in the colonial era had been eliminated but so, too, had many of the advantages of membership in the British empire. An independent American merchant marine was free to carry American products to the ports of their choosing, but they no longer enjoyed the protection of the British navy on the high seas. New England fishermen had won the right to fish off Newfoundland, but they had lost the guaranteed British Caribbean markets for their catch. Chesapeake tobacco planters had renounced their debts to Scottish merchants and English consignment agents when they declared independence, but in the process they had lost their most reliable sources of credit. And settlers faced no barriers to westward migration, but they could no longer rely on a well-trained and well-equipped army when Indians attacked. Slowly, Americans realized their new dilemma: Who would provide the protection colonists once found in the sheltering arms of their mother country?

The pessimism slowly engulfing men from Maine to Georgia was intensified by the lingering postwar depression in the South and in New England. Two major British military campaigns had left the Carolinas in shambles, with scores of homeless and penniless still to be cared for. Rice planters had to replace much of their labor force as hundreds of slaves had run away or found refuge in British army camps. Farther north peace, not war, had dealt the crushing blow to New England’s economy. Despairing, idle fishermen could be seen in every seaport town, helpless in the face of British trade restrictions against them in the West Indies. Local agriculture fared no better. Far from the battlefield during most of the Revolution, New England farmers had expanded their production to meet the demands for food in other regions. Now that farming had resumed in every state, New Englanders were scrambling to meet mortgage payments for land they had cleared and planted during the Revolution. A wave of foreclosures and evictions swept across the western counties of Massachusetts, and local prisons soon overflowed with debtors. In Berkshire and Hampshire Counties, the busiest workers were local carpenters, called upon to construct larger jails.

These nagging economic problems had not brought Americans closer together. Wherever one looked, the competing interests of creditors and debtors, rural farmers and urban merchants, artisans and importers, acted as centrifugal forces, dividing the nation. While state governments debated what to do, private citizens took matters into their own hands. Disgruntled Vermont farmers, who had declared their independence from New York in 1777, demanded that the new American government, the Confederation Congress, recognize their statehood. More disturbing was the news that in New Jersey, South Carolina, Pennsylvania, Virginia, and Maryland, backcountry farmers were rising up in armed rebellion and had to be controlled by militia units.

Relationships among the states were no better. In the aftermath of the Revolution, real political power resided in these state governments. Animated by a heartfelt ill will and rivalry, state legislators missed no opportunity to exploit the weakness of their neighbors. They rushed to enact tariffs and trade barriers, replacing the hated British restrictions with restrictions of their own. New Jersey had gone so far as to create its own customs service, an ironic tribute to the regulatory system of its former British rulers. Virginia’s penalties for avoiding its interstate import duties would have impressed even the most venal British customs men. With duties to pay at every state border, even the most intrepid merchant or shipper found interstate commerce a nightmare. States with natural advantages made every effort to abuse those without them. Virginia and South Carolina cheerfully squeezed what they could out of hapless North Carolina. Meanwhile, New York and Pennsylvania, both blessed with major ports, imposed steep duties on all goods destined for neighboring states. James Madison described New Jersey, trapped between the two states, as a cask tapped at both ends. Connecticut also fell victim to New York’s greed. Tired of being victimized, Connecticut and New Jersey were rumored to be planning a joint assault on New York.

Other sovereign rights claimed by the states hurt domestic trade. Each state insisted on issuing its own currency, and, thus, a New Yorker sending goods to South Carolina ran a gauntlet of ever-fluctuating exchange rates before his wares reached their final destination. By 1785 the conflict and chaos created by thirteen independent mercantile systems was obvious, yet calls for commercial cooperation that year and the following year were met with suspicion, resistance—and a decided lack of interest.

The solution to these problems, and others, would seem to modern Americans to be the task of the national government. But in 1786 the national government was ill equipped to handle even the smallest crisis. Many of the men who created that government now realized how badly flawed it was. Indeed, it was this faltering, floundering government that threatened, in Washington’s view, to condemn America to appear as a humiliating and contemptible figure . . . in the annals of mankind.

America’s first constitution, the Articles of Confederation, had been written by the Second Continental Congress soon after the Declaration of Independence was signed. Pennsylvania lawyer John Dickinson was called upon to produce the first draft of the document, but the conservative Dickinson’s inclination toward a strong central government did not sit well with his fellow Revolutionaries. Congress made short shrift of the document Dickinson presented, systematically editing out any suggestion that the Confederation would enjoy any real power over the states. Where Dickinson’s version began with a firm declaration that the Colonies unite themselves so as never to be divided by any Act whatever, the amended version began with the equally firm declaration that each state retains its sovereignty, freedom, and independence.

It was not hard to understand why a congress sitting in 1776 preferred a firm league of friendship rather than a potent central government. What, after all, was the country waging war against but the tyranny of centralized power? And what were they fighting for but to secure the absolute sovereignty of their local representative assemblies? For these Revolutionaries, the rallying cry of No taxation without representation had meaning only in the context of their local colonial assemblies, now free from the oppression of the British Parliament and the British king. The Revolution was not one battle for independence but thirteen—proof that a profound localism still trumped any embryonic identity as Americans. These identities were, after all, relational: Patrick Henry, John Adams, and Richard Henry Lee were Americans when they contrasted themselves with the citizens, government officials, and soldiers of England, but at home, when they looked to their own right and left, they were Virginians, New Jerseyites, Connecticut men. Thus, when Patrick Henry declared in 1774 that he was no longer a Virginian but an American, his countrymen took this for the rhetoric that it was. Despairing of this localism sooner than most, General Washington’s brash and brilliant young aide-de-camp, Alexander Hamilton, bemoaned the fact that so few Americans thought continentally. His mentor and friend, General Washington, was forced to agree. When, as commander in chief, he asked a New Jersey militia troop to swear loyalty to the United States, they refused. New Jersey, they said, is our country.

The Continental Congress showed little inclination to think continentally as they wrote the Articles of Confederation. As sensible men about to wage a war, they were willing to concede the power to declare war and make peace to the Confederation. Their common defense . . . and their mutual general welfare depended upon central coordination in war and a unified voice in treaty negotiations. In all other areas, however, they took pains to create a government incapable of the political or economic abuses suffered under king and Parliament. In 1776 the wounds inflicted by corrupt royal governors and royal judges were still raw. So, too, was the memory of upper houses or councils in their colonial governments that often betrayed local

Reviews for A Brilliant Solution

[jarratt_1 · Rating: 4 out of 5 stars]

Nice little succinct book on the creation of the Constitution. The end of the book includes short biographies of everyone who took part in the convention (whether he signed or not), and the text of the Articles of the Confederation and the Constitution itself.

[michaelhodges · Rating: 4 out of 5 stars]

Review: A Brilliant Solution, Inventing the American Constitution - by Carol Berkin……………..7 July 2013This book published in 2002 should be a must read for all students of American History and Civics. The prose is clear concise and quite complete I would warrant. Quite an easy read. This book is especially good for those such as myself a long time naturalized US citizen and history buff. The author, a CUNY professor has written a most sparkling rendition of the proceedings of the Constitutional Convention held in Philadelphia over a six month period in 1787. The academic book is replete with source notes, time line, chronology, copies of the Confederation and the US Constitution Articles, plus 54 one page biographies of the state delegates. As a student of democracy, I had often questioned why the US Senate composition is so undemocratic. More-over in this age of rapid voting returns, why the current need for an electoral college to determine who will be the US President? The 1787 Connecticut Compromise has determined the make-up of the US Senate and the Two Senators per State formula was negotiated to protect the smaller states. In my view that requirement is no longer relevant. It is time to re-calculate US Senate representation. One could greatly reduce the cost of Government by combining most of the small states with a larger neighbor. However I doubt that individuals of small states would concur. Once a Wyoming always a Wyoming! So instead we could reduce the number of Senators from States with less than 3M residents to one per state and add Senators proportional to the population of the larger states so that the State of California with a population of 40M warrants 10 Senators. As far as State ratification dates, the sequence is discussed but not all the dates are included. A most minor deficit. I list the 13 states and their ratification dates below.1Delaware7 Dec 17872Pennsylvania12 Dec 17873New Jersey18 Dec 17874Georgia2 Jan 17885Connecticut9 Jan 17886Massachusetts6 Feb 17887Maryland28 Apr 17888South Carolina23 May 17889New Hampshire 21 Jun 178810Virginia25 June 178811New York26 Jul 178812 North Carolina21 Nov178913Rhode Island29 May 1790

[jepley38 · Rating: 5 out of 5 stars]

This is a concise, yet insightful look at the men and processes of developing America's constitution.

[michaelhattem · Rating: 4 out of 5 stars]

The previous reviewer mentions Berkin's lack of footnotes. While it is true, the reviewer doesn't seem to understand that this book is written for a popular audience. Hence, the narrative style. Also, any narrative account of the Convention must necessarily be based on Madison's notes and, seeing that there is no new scholarship here, the decision by the author to leave out intimidating footnotes seems prescient. Berkin's book is a great introduction to the Constitutional Convention giving both a "story" and the issues. Her character portraits are interestingly drawn and does a good job of propelling the story forward which is not an easy thing to do when chronicling a political convention.Both books mentioned by the reviewer, by Wood and Rakove, are fundamentally different from this book and certainly are not seeking the same audience. Wood's "Creation" especially is not something most casual readers, i.e. those caught up in this resurgence of interest in the Founders, will want or even be able to tackle. Berkin makes a point of writing history for the public and she has succeeded here once again.

[jbd1 · Rating: 3 out of 5 stars]

A decent, if basic, treatment of the Constitutional Convention ... if it's depth you want, though, choose another book (Gordon Wood's "Creation of the American Republic" or Jack Rakove's "Original Meanings" come to mind). Berkin writes without footnotes (troublesome particularly when she makes errors, which happens at least once), in a narrative style which is readable but not great. Her biographical sketches of the Convention delegates (which follow the text) are the most interesting and useful part of the book.