James Wilson, one of the most eloquent and artful of his time, spoke at Pennsylvania’s Ratifying Convention on December 1, 1787 about the merits of the draft Constitution. One of the crucial components of the draft was its creation of the legislature as a “restrained” legislature; a legislature that would “give permanency, stability and security” to the new government.
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.
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.
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.
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.
Throughout the history of the United States, there have been numerous instances where its citizens questioned whether the Constitution and its amendments were sufficiently protecting the liberties of the people. Those questions have led to substantial change—such as the amendments to the Constitution and laws that furthered the Constitution’s objectives, like the Civil Rights Acts—and yet, the American people’s perspective on the Constitution and the liberty it affords has often been one of disenchantment.
Impeachment of a president has become a feature within the Constitution that is colored by its uses throughout history: the impeachments of Andrew Johnson, Bill Clinton, and Donald Trump and the near-impeachment of Richard Nixon. While none of the impeachment proceedings resulted in conviction—and thus removal—of a president, those proceedings illustrated how Congress would deliberate over the solemn task that the Constitution assigned it. At the time the Constitution was facing ratification, it remained unclear how Congress would actually remove a president, and one author, writing under the name Luther Martin, opined in the Maryland Gazette that Congress would never remove a president—and thus far, Martin has been correct.