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Creation of the U.S. Constitution
Russell D. Renka
PS103 -
January 29, 2009

Foreign Defense and Diplomacy
Promoting Prosperity
Law and Order
What a Constitution Does
Works Cited

    Chapter 2 of the text is called "Constitutional Democracy" because that's what it is about.  All PS103 textbook candidates will have such a chapter.  Here I ask a basic question derived from all that:  why did the Founders feel compelled to ditch the Articles of Confederation in the first place?  Had they not been judged a miserable flop, then meeting in hot humid Philadelphia for four months of year 1787 wouldn't have been necessary.

    I argue the Framers' case (later called the Federalists' case) by invoking three elementary public goods that any successful country or political system must provide.  Remember that public goods are things shared by a group, not divisible and not subject to exclusion against those who would not pay for them.  It's government business to provide large-scale public goods to prevent free riders from torpedoing their creation and upkeep.

    I list three public goods as preeminent among the things governments must do.  They are so essential that the trio forms the elementary basis for public evaluation of a political system.  If it fails any one of these three, the whole system is wanting.  These are: 1) defending the nation and its people from foreign attack, 2) promoting the prosperity and welfare of its people, and 3) creating law and order in civic life.  I doubt you'll find any of these objectionable, although you might want to add or subtract some wrinkles from each one.

    The Articles of Confederation proved a failure on each of these three.  That's more than enough to be fatal.  It's almost a wonder that it took until 1787 before decisive action to junk the Articles.  Let's consider these in the order given above.

Foreign Defense and Diplomacy                     Top; Next Down

    Take a look at the American-settled portion of North America before 1800 at United States - Exploration and Settlement, 1675-1800 (source:  United States Historical Maps - Perry-Casta˝eda Map Collection - UT Library Online).  This map demonstrates the peril of the 1780s states after the 1781 Cornwallis defeat at Yorktown.  On all four sides were elements or allies of three principal European colonial powers Great Britain, France, and Spain.  The ocean to the east was property of John Bull in His Majesty's service; to the north was Canada under British rule with many former Tories, some of them quite homesick; to the west were Native Americans allied loosely with either French or British if anyone; and to the south in Florida was fading Spain's hold on a property that held no gold but many independent Seminole tribes and not a few escaped American former slaves.  Security was not obtained in any permanent or enduring sense by the vanquishing of British occupation forces in the War of Independence.

    And what did the Articles provide to defend the 13 more-or-less United States?  Very little.  There was no President worth the name in the Articles, nor adequate means for the national assembly to tax citizens to create a permanent army or navy.  That Congress could declare wars but not make certain that troops were present to fight them.  The Continental Congress was largely on its own to provide such national defense as could be had, but their principle problem in the early postwar was how to physically evade angry state militia men who had never been paid for their prior war services.  The Congress fled the temporary Philadelphia capital for a considerable time to avoid account-taking with armed men; but then could not settle upon a single site for a permanent alternative or new national capitol site.  That would await the creation of an authentic national government after 1787.  None was to be found before that.

    If defense was a flop, diplomacy was little better.  There were skilled ambassadors such as Benjamin Franklin in Paris, but these were largely free agents since they had essentially no superior to whom to look for instructions.  They had both too little authority and too much; in both instances they could do little for the fledgling collection of states as a whole.

Promoting Prosperity                    Top; Next Down

    No people was more commerce-minded than the Americans, and among their leading commercial figures were some among the Framers themselves.  Some saw themselves as conscious agents of opened commerce among the several states and with foreign nations, but they faced deep impediments from the democratic state governments of the 1780s.  These governments behaved as do all elected assemblies, with bias favoring the voters over others.  One ready way to accomplish that is to preferentially tax your resident citizens less while taxing more heavily those who cannot or will not fight effectively against such things.

    The result was a vicious outbreak of trade wars among the states.  The peculiar topography of North Carolina admitted of no place for a working seaport--as anyone who's seen Cape Hatteras or visited shipwreck-central off those shores is aware (Shipwrecks of Cape Hatteras; Graveyard of the Atlantic; North Carolina Shipwrecks - Cape Hatteras).  But neighboring Virginia had an excellent port site, and so did South Carolina down in Charleston.  North Carolina merchants quickly discovered, however, that crossing either state's border was perilous in the purse.  These states heavily taxed such commerce on grounds that the out-staters would otherwise free ride on expensive state roads built with tax revenues from the sweat and work of Virginians and South Carolinians.  The "foreigners" were stopped and heavily taxed at the border and the port customs house.  The North Carolina merchants got gouged.

    It was the same elsewhere.  Second to the seaports in commercial importance were the short navigable piedmont stretches of rivers such as the Potomac River which separates Virginia from Maryland.  Which sovereign state actually owned these waterways?  In the Potomac case, both Virginia and Maryland claimed sole domicile--and sought to prove their claims by imposing taxes on any vessel using that waterway (Greenhouse 2003, Justices Consider Dispute On Use of Potomac River - New York Times).   Since each state had its own armed militia and could not persuade the other to yield, they threatened to come to blows over this within the very earshot of observers like Washington in Mt. Vernon and James Madison in Monticello!  You can readily guess how disgusted these two visionary men were at such petty abuse.  As Madison later wrote in Federalist 51:  "If angels were to govern men, neither external nor internal controls on government would be necessary."  Right; and governments aren't angelic toward other governments, either.  They're run by men, elected or not.  Elected ones have exactly the incentive to overload taxes on outsiders that we witness here.

    In case you doubt this motive, I ask that you perform a simple experiment in your home locale.  Find out what the local sales tax is, and then find out the hotel tax.  No matter your residence, I wager that the second is appreciably higher.  And in case you're not sure why, ask who pays the bulk of each tax:  locals who live there and elect its tax-making officials, or visitors who cannot politically do much about high taxation?  Next time you visit Chicago and pay their 15.4% hotel tax, you'll have learned some politics.

    The Framers were determined to slam the lid closed on abusive trade restraints by the states.  I think this has been a signal success of the American federal union.  They began our historical movement toward a single giant common market--and that's a huge reason for our historic success in creating enduring prosperity.  How was this done by the Framers?  Partly with obvious measures like a single national standard for weights and measures; more clearly with creation of procedures to move toward one national currency; but most of all, via the commerce clause.  You'll have no trouble in Article I, Section 8 of the Constitution finding this interstate commerce clause.  It took away the meddling power of states to tax (with small exceptions) and placed regulation of "commerce among the several states" entirely with the new national elected assembly created in this Philadelphia document (Commerce Clause Limitations on State Regulation).  Today we have a 50,000 mile interstate highway system that allows us to whisk past state borders with impunity.  We have a single national currency with green paper and stylish state-motto quarters that lets us be blithely indifferent to whatever state we happen to occupy.  We cross bridges, attend universities, talk on cell phones, send e-mail, and generally conduct our lives without much concern for state-imposed barriers to open commerce.  That, folks, is a big thing!  The Europeans have largely achieved a similar Common Market with one currency (the Euro) and minimal restriction on free movement; more power (and prosperity) to them for doing so (European Economic Community; EUROPA - The European Union at a glance).  They had our prosperous postwar example to emulate.

Law and Order                    Top; Next Down

    Shays's Rebellion is featured in the constitution-formation section of every textbook of American politics courses.  That's with good reason, for this event just happened to occur when the commerce-minded founders to be were reaching the conclusion that the Articles of Confederation were an unredeemable failure.  Some of the framers met in Annapolis, Maryland in warm season 1786 to try a fix, and it failed except for resolve to meet somewhere again in spring-summer a year hence (The Avalon Project - Proceedings of Commissioners to Remedy Defects of the Federal Government).  During that interim winter of 1786 through early 1787, western Massachusetts farmers rose against creditor interests and the courts that enforced their claims against chronically indebted borrowers (Digital History - Shays's Rebellion).  Now this is the point; I said not only that Daniel Shays led a revolt against bankers and creditors, but also that it was a true Rebellion against the authority of the Commonwealth of Massachusetts.  They saw with considerable accuracy that the state government and its local courts basically were agents to creditors who sought court judgments against debtors who could or would not pay debts that came due.

    The Framers largely identified themselves with the commercial lenders, because they themselves were both men of commerce and ones who saw that class as crucial to creating a thriving commercial system (Springfield Armory National Historic Site - Shays Rebellion documents - U.S. National Park Service).  You had to have banks and "sound" inflation-resistant currency to pay off crushing debts left from the revolution, and to establish American capacity to engage in cross-Atlantic trade with Europeans.  Those things are evident but still controversial to us today, and were obvious but class-connected to these commerce-minded men of the 1780s.  They were scared of those Shays-led dirt farmers, who were well-armed and belligerent enough to employ tar and feathers against local sheriffs who dared try to enforce court judgments to foreclose a farmer's land and crops if he could not pay debts.

    Besides, Shays' Rebellion was vivid to them because there were numerous other uprisings in all 13 of the states.  There was a powerful emergent division in sentiment between largely coastal commercial interests mindful of seagoing trade, and inland west-facing dirt farmers who saw the future in agrarian America pointing westward.  Politics is often about conflict among classes of persons, and this was serious class division.

    Shays and co. were eventually put down in 1787, but not by the state itself.  No, it was done chiefly through hard men hired by creditors to protect themselves and to attack the rebels under direction of an experienced general.  Vigilante action is a common resort of local people who cannot count on a state to take care of law and order.  Massachusetts had appealed to other states to send assistance in restoring law and order where local farmers had marched, pitchforks and some long guns in hand, to the offending courthouses from which eviction orders had been issued.  This appeal fell not on deaf ears, but on persons who basically had other concerns of their own and were not especially interested in making help for another state their own priority.  This failure is a major reason why the Founders placed in the U.S. Constitution a "full faith and credit" provision whereby states were to assist each other in carrying out lawful judgments and their enforcement.  Yet even today, states are often exceedingly lax in helping other states carry out judgments against male scofflaws who flee child support payment requirements by changing an address after a divorce settlement.

What a Constitution Does            Top; Next Down

    Students sometimes confuse constitutions with ordinary lawmaking and rulemaking by governments.  There is a distinction nicely designed into the actual name of the German constitution, adopted in 1949 under direct American influence.  It's called the Basic Law.  That captures the essence of constitutionalism.  A constitution designates the fundamental characteristics of a government, such as our American separation of powers (into three distinct branches with partially separate functions), republicanism (a government of elected officials) and federalism (division of power between a central government and constituent states or provinces, each with its own constitutions).  A constitution defines how power is acquired, and what powers the government does and does not possess.  It need not include a bill of rights, but the American variant belatedly took one on (in recognition that ratification in the states required as much).  Constitutions do not serve as collections of statutes (written laws) or regulations (executive or judicial written rules for executing the powers of a government).  The founding is not a place for deciding what the legal minimum wage ought to be, or even whether there ought to be one.  Basic law only; and that is why today's national Constitution (unlike more modern state constitutions) has well fewer than 8000 total words despite its 27 amendments.

    Students also tend to see current-day operations of the American political system as derived entirely or directly from the framing in 1787 and ratification in 1788.  Rarely is this so.  There are instances of that, such as the famous bicameral legislative arrangement with a lower house showing apportionment of seats by population (as determined by a decennial Census) and an upper chamber apportioned at two seats per state.  But that shades over the vast changes wrought not in Philadelphia, nor in the 18th century at all, but rather in the long and tortuous push toward broader democratic self-governance (Wilentz 2005).  We will see this directly in subsequent weekly posts.

Conclusion                     Top; Next Down

    The Constitution, we know, did launch the ship of state onto a long and ultimately successful venture in governance of a young expanding country.  One sure sign of its success came as threatening foreign powers became rightfully afraid of the rapidly expanding young American nation.  A map tells this tale.  Witness the 1800-to-1820 illustration of our headlong rush westward and southward, per United States - Exploration and Settlement - 1800-1820, and Westward Expansion and Exploration 1803-1807.  We were stymied in going northward to Canada only by the doughty British resistance there, expressed mostly in the War of 1812.  Otherwise it was a relentless American move toward eventual 20th century status as a great economic and military power--as one founder, the foresighted Secretary of Treasury Alexander Hamilton, had foreseen in his prescient 1791 Report on Manufactures.  Even the awful 1860s Civil War over slavery did not stop that.  Indeed, it may have spurred more westward movement--by Mark Twain, his brother, and a legion of others who wished to leave that trouble behind them.  For a century our "wide open spaces" were our national preoccupation, at least until the 1890s when historian Frederic Turner more or less declared the frontier to be closed.

    We were far less successful in establishing nationwide law and order.  The slavery issue ensured that it would be a very long while for that; and so did the frontier conflicts with native Americans and with the Spanish and Mexican settlers in the mountain and Pacific western regions.  To this day, Americans habitually rely as much on gun ownership as on legal code for their sense of safety and security.  That is especially true in the less law-abiding and more high-crime southern and western parts of our vast land.  Most Americans have a rather casual attitude toward personal evasion of law--as our onetime Noble Experiment of 1919-to-1933 in national alcohol Prohibition should have demonstrated (Digital History - Prohibition; Schaffer Library's History of Alcohol Prohibition; Temperance & Prohibition).

Works Cited

Greenhouse, Linda.  2003.   Justices Consider Dispute On Use of Potomac River - New York Times New York Times, 8 October 2003.

Wilentz, Sean.  2005.  The Rise of American Democracy:  Jefferson to Lincoln.  New York:  W.W. Norton & Company.


Copyrightę2009, Russell D. Renka