At the Pennsylvania Convention, Robert Whitehill rose to speak about the proposed Constitution including—and perhaps especially—its biggest flaw. To Whitehill, despite the fact that the country’s learned people devised the Constitution, “the defect is in the system itself,—there lies the evil which. no argument can palliate, no sophistry can disguise.” The Constitution, as it was written, “must eventually annihilate the independent sovereignty of the several states” given the power that the Constitution allotted to the federal government.
The years after the Civil War, until 1877, were replete with novel uncertainties. The country had changed: the qualities that defined antebellum America had vanished; those who had been the most vocal before the war—soon-to-be Confederates—had seen their soapbox taken by the “Radical Republicans,” Republicans who sought to not only end slavery but to bring into effect equality amongst the races. Regardless of political party or geographic location, the country and its citizens had the task of reconstructing the United States, every one of them, and that task began before the Civil War’s end. President Abraham Lincoln spoke of his hope to reconcile the “disorganized and discordant elements” of the country, and he said: “I presented a plan of re-construction (as the phrase goes) which, I promised, if adopted by any State, should be acceptable to, and sustained by, the Executive government of the nation. I distinctly stated that this was not the only plan which might possibly be acceptable.”[i] Lincoln died four days later without fully setting forth his vision for how the nation may reconstruct itself, but events would soon render that vision—broad and ambiguous as it was—antiquated: soon after his death, the same federal government that had grown to enjoy extraordinary power (such as suspending the writ of habeas corpus) would go from having an authentic political genius, Lincoln, at its helm to having Andrew Johnson, a disagreeable at best (belligerent at worst) as executive; and not so long after Johnson took power, roving bands of the Ku Klux Klan acted in concert with state officials throughout the South to subjugate—by any means—those who had been freed.
Pennsylvania Ratifying Convention. November 20 through December 15, 1787. James Wilson’s Opening Address.
November 24, 1787
At the convention in Pennsylvania called for ratifying the draft Constitution, one of the foremost students of history and articulate Americans of his time, James Wilson, delivered the opening address. Just as every great storyteller knows to do, he provided the context for the moment: whereas most governments are created as “the result of force, fraud, or accident,” America “now presents the first instance of a people assembled to weigh deliberately and calmly, and to decide leisurely and peacably, upon the form of government by which they will bind themselves and their posterity.” Past governments, whether that of the Swiss Cantons, the United Kingdom’s monarchy, the United Netherlands, or the ancients—the Achaean and Lycian leagues, the Greeks, the Romans—provided examples for the three forms of government: “Monarchical, Aristocratical, and Democratical.”
In the course of human history, there have been innumerable types of governments—all of which serve as examples for those seeking to devise their own system of government. When the Constitutional Convention gathered, there was consensus that the Articles of Confederation would no longer suffice, but it remained unclear what direction the convention should go when drafting its Constitution. James Madison, writing under the name Publius, detailed the monumental task that the convention assigned itself.
In celebrating America’s first centennial, on July 4, 1876, one must have recalled the tumult of that century: a war to secure independence, a second war to defend newly-obtained independence, and then a civil war the consequences of which the country was still grappling with eleven years after its end. But there also had been extraordinary success in that century, albeit not without cost; by the 100-year mark, the country had shown itself and the world that its Constitution—that centerpiece of democracy—was holding strong (with 18 Presidents, 44 Congresses, and 43 Supreme Court justices already having served their government by that time), and the country had expanded several times over in geographic size, putting it in command of a wealth of resources as its cities, industries, and agriculture prospered. Several months after the centennial celebration was the next presidential election, and during the life of the country, while most elections had gone smoothly, some had not—the elections of 1800 and 1824 were resolved by the House of Representatives choosing the victor as no candidate secured a majority of Electoral College votes and the election of 1860 was soon followed by the secession of Southern states. And yet, even with those anomalous elections in view, the upcoming election of 1876 was to become one unlike any other in American history.
The original sin in America’s Constitution was how it addressed—or failed to address—the issue of slavery. There was always going to be a question of how the country would transition away from slavery as the rest of the Western world was beginning to do by restricting importation and proceeding to impose limitations on trade. An article authored by “Mark Antony” responding to one authored by “Brutus” laid out, in 1788, a vision for how the country could deal with slavery—but unaware of how long it would take for slavery to be abolished and how much would be lost in finally achieving abolition.
From the time that Ulysses S. Grant became a household name in America—during the Civil War—and particularly following Lincoln’s assassination, there was no more popular American in the remainder of the Nineteenth Century. The presidential election of 1868 showed the level of support that Grant had: although it was his first election, he won the entirety of the Midwest and New England and even took six of the former Confederate states. He was always going to be a formidable opponent. As the election of 1872 approached, it became clear that Grant, a Republican, would not have to vie for re-election against a candidate with the stature of a fellow former general or even a well-established politician; instead, his challenger would be the founder and editor of a newspaper: Horace Greeley, a Democrat. Although Greeley had one term in the House of Representatives at the end of the 1840s, his following stemmed not from his brief time as a politician but rather the incisive pieces that he wrote and published in his newspaper, the New-York Tribune. As loyal as his readers were, there remained a question whether Greeley’s following could grow to unseat the man who still, seven years after the war, was viewed as bringing peace and prosperity to the country.
In the draft of the Constitution was a clause that permitted the federal government to “borrow money on the credit of the United States, and to raise and support armies.” The author of an article in the New York Journal, using the pseudonym Brutus (undoubtedly referring to one of Julius Caesar’s assassins, Marcus Junius Brutus), warned of the consequences flowing from that clause. Not only did it leave open the possibility of the national debt growing so large as to exceed the country’s ability to repay, it allowed an “indefinite and unlimited” power to raise armies regardless of whether the country was at war.
Economic crises carry with them hugely devastating results: high rates of unemployment and bankruptcy are emblematic of the more modern ones. Often, a crisis is not precipitated by a flaw in the overall economy but instead a dangerous practice in a sector of that economy. Perhaps that sector has companies or individuals who have undertaken a course of action that threatens the market, and perhaps no authority figure—governmental or otherwise—can curb or stop that dangerous behavior and prevent the damage from being done. By 1873, the American railroad industry had become an industry asking for a crisis: throughout the country—and increasingly in Europe—the American railroad companies had been a popular investment; the lure of high returns was too strong for investors to resist, and the tinderbox for the impending blaze would be the bonds of railroad companies. Those bonds were the sought after investment of the time and had been collateralized—just as a piece of real estate is collateralized for a mortgage—several times over (therefore inflating the value of the bonds, the volume of the railroad bond market, and the risk of the investments). Investors, through their greed, were guaranteeing that when the market did face a disruption—and it inevitably would—that disruption, that spark, would be the beginning of a years-long economic depression.
When drafting any written constitution or even any law, there is a question of whether every right should be explicitly laid out in the document. Where there are express rights in a constitution—such as the right to freedom of speech—a reader (including judges) may conclude that the list of rights are exhaustive and that there are no rights but those mentioned in that constitution. A reader could also reason that those rights which are expressed in the constitution are not a complete list but only the most important rights and may, in fact, include other rights. Additionally, a constitution may have express prohibitions such as the United States Constitution at Article I, Section 9: “The privilege of the writ of Habeas Corpus shall not be suspended.” Questions of interpretation, such as these, led to debates between friends in the winter of 1787 and 1788, and a letter from Thomas B. Wait to George Thatcher illustrated those debates.