The American Founding
Selected and introduced by Gordon Lloyd
This volume presents some of the documents necessary to understand the essential ideas and debates that shaped the founding of the American civic order. All reflection upon and action within that civic order, if they are to do any good, must rest on an understanding of these debates and ideas.
The volume opens with four documents that set the stage for the central drama of the Founding, the debates in the Constitutional Convention. The Virginia Declaration of Rights and the Virginia Constitution (1776) express some of the central ideas that justified the Revolution. These ideas appear in one form or another throughout the documents of the Founding period. They appear in Jefferson’s Draft of the Declaration of Independence (Document 2), written less than a month after Virginia adopted its Bill of Rights and Constitution. Jefferson’s Draft of the Declaration also raised the issue of slavery, an issue that would prove to be both central and problematic in the debates at the Constitutional Convention (Documents 6, 11, 13, and 14). Document 3 is the Articles of Confederation, the system of government under which the states fought for their independence, but which proved defective in the eyes of many Americans. James Madison summarized these defects in his 1787 memorandum, “Vices of the Political System of the United States” (Document 4).
Madison’s memorandum, written in preparation for the convention, best shows how the mood of the Revolutionary generation had shifted from hope to concern in the decade following the writing of the Declaration. For most of those years, the revolutionary struggle itself overshadowed realization of the political challenges that would face the new republic of federated states. After peace was declared, disagreements and discontents relating to unpaid war debts, protectionist trade measures unilaterally imposed by individual states, and other matters threatened the unity of the nation and effectiveness of its central government. Madison suggested a special meeting, to be held outside of the Continental Congress, to resolve the interstate trade issues. The meeting occurred in Annapolis, Maryland in 1786. Only five states sent delegates, however, and the Annapolis meeting ended with a call for a Constitutional Convention. Anticipating this convention, George Washington wrote to Madison expressing his wish that “the Convention may adopt no temporizing expedient, but probe the defects of the Constitution to the bottom, and provide radical cures, whether they are agreed to or not.” This was the prompt Madison needed to write his memo. It became, in effect, the first draft of his famous defense of the extended republic in Federalist 10 (Document 20), one of a series of essays that Madison, Alexander Hamilton and John Jay wrote to defend the Constitution and secure its ratification.
Madison, Washington, and Hamilton, among others, had grasped that a fundamental ambiguity lay at the heart of the Articles of Confederation. Article III stated that the union of the states was to be “a firm league of friendship,” and Article XIII declared that “the union shall be perpetual.” Yet, according to Article II, each state retained every power that was not “expressly delegated” to the Congress. Madison criticized the Articles because they lacked “the great vital principles of a Political Constitution,” namely, “sanction” and “coercion.” The “evil” that alarmed him the most was that individual rights were being violated by unjust majorities in the state legislatures. Focusing on this problem, Madison redirected the long-standing American conversation about rights. Instead of securing the rights of the people against the unrestrained conduct of monarchs and aristocrats, the new challenge was to secure the rights of minorities against omnipotent majorities in the legislative branch. He challenged “the efficacy” of such traditional republican solutions as “a prudent regard” for the common good, “respect for character,” and the restraints provided by religion. Instead, he argued, “a modification of the Sovereignty” was needed. The solution was to create an extended republic in which a multiplicity of opinions, passions, and interests “check each other.”
Before Madison and others could defend the proposed constitution, it had to be drafted. Documents 5 through 15 are excerpted from Madison’s account of the debate in the Constitutional Convention that met from May 25 to September 17, 1787, in Philadelphia. We are under no illusion that a reader’s favorite exchanges or speeches at the Constitutional Convention will necessarily be included in this collection. The June 6, 1787 exchange between Madison and Sherman as well as Franklin’s “More Perfect Union” speech on September 17, 1787 come to mind; both illuminate the essential issues at stake at the Convention. (The former is actually anticipated in Madison’s Vices and most fully articulated in Federalist 10, both of which are included in this collection.) But to supply these absences, we are publishing a separate collection of documents on the Convention. We will also publish a separate collection of documents on the ratification debate, a volume that includes documents from selected state ratifying conventions as well as a greater selection of writings by those who supported and opposed ratification.
Yet we do include in this volume some writings from the debate over ratification (Documents 16 through 23). The most fundamental question these writings discuss is what a republic is, and therefore what kind of republican government is best. All the disputants agreed that, as the Declaration declared, all men are equal and thus must be governed only with their consent. But how must a republic and its government be structured so that self-government does not become tyranny or anarchy?
Document 24 is an exchange of letters between Madison and Thomas Jefferson, who was serving in Paris as America’s Ambassador to France during the Constitutional Convention and ratification process. Among other things, the two men discussed the need to add a bill of rights to the new Constitution. The lack of such a bill was a principal reason Antifederalists opposed the work of the convention. In their correspondence, Madison explained to Jefferson that the extended republic would secure the civil and religious rights of individuals from the danger of majority faction. Jefferson responded favorably two months later. He was troubled, however, by claims that a bill of rights was unnecessary. He reminded Madison that “a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inference.” He listed six essential rights that should be declared: “freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters.” Upon being informed by Madison that the Constitution had been adopted, he reiterated his list of six rights.
George Washington mentioned the need for a bill of rights in his First Inaugural address (Document 25) and Madison, persuaded by Jefferson, argued forcefully for a guarantee of these rights in a speech to the new House of Representatives on June 8, 1789 (Document 26). These final two documents also show the new experiment in self-government at work, and thus bring to a fitting close the story of the American Founding.
Taken as a whole, the documents in this volume express six important themes in the American Founding. 1) How should a Constitution distribute the powers of government between the national government and the states? Should it follow the Articles of Confederation, in enumerating these powers, as the New Jersey Plan does? Or should it leave them largely unspecified, like the Virginia Plan? 2) How should a Constitution allow for representation of the various participants—or interests—in the “scheme” to be devised? 3) Does a small territorial size, along with the virtue and homogeneity of the citizenry, matter for the well-being of a republic? Or should we move toward an extended commercial republic? 4) How might bicameralism and the separation of powers contribute toward effective government that still honors citizens’ freedoms? And how separate do the powers need to be to ensure that one branch of government does not encroach on another? 5) What are the sources of faction, and do we eliminate its cause or control its effects? 6) How important is a bill of rights to preserving federal decentralization and republican liberty?
The framers who met in the Constitutional Convention, the citizens who debated whether the resulting Constitution should be ratified, and the legislators who hammered out the first 10 amendments to it — the Bill of Rights — answered these questions. Yet in one form or another they continue to animate American political life.
To enhance the clarity of the documents for today’s readers, we have sometimes modernized spelling, capitalization or punctuation (although we refrained from doing so in the case of iconic documents such as the Declaration and Constitution, since in those cases a long publication history has preserved the original usage). We have footnoted individuals and events that might not be known to the modern reader. In addition, we have provided several appendices to give further context for the documents. One of these is a thematic table of contents that highlights the stages in the deliberations during the Founding.
A Note on Usage:
In recording the debates at the Convention, Madison uses the terms “house” and “branch” interchangeably with reference to what would become the House of Representatives and the Senate. To modern ears, “branch” connotes the three divisions of our government (legislative, executive, and judicial). However, to respect the language used by Madison and the delegates, we generally use the term “legislative branches” when speaking of the two houses of Congress.
While a few delegates, following the British way of thinking, used the terms “upper” and “lower” to distinguish between what we call the House and the Senate, most delegates preferred to speak of the House of Representatives as the “first” branch of the legislature and of the Senate as the “second” branch. The terms “upper” and “lower” carried an aristocratic connotation. Madison and many other delegates preferred the more democratic terminology of “first” and “second.”