Liberal Constitutional Construction

Author:John P. Roche

Page 1610

The liberal attitude toward the Constitution?admitting a range of internal differences?centers on the proposition that the Framers, as talented a group of democratic politicians as ever lived, expected their descendants to be at least as experimental as they were. When the Framers gathered in Philadelphia, they were improvising a novus ordo seclorum without a blueprint. JOHN ADAMS, working feverishly in London compiling the history of attempts at republican government, tried to summarize the lessons of history. JAMES MADISON had prepared himself by reading every relevant work that he and his mentor THOMAS JEFFERSON, then in Paris, could lay their hands on. ALEXANDER HAMILTON was satisfied that Thomas Hobbes had provided the essentials.

But delegates to the CONSTITUTIONAL CONVENTION OF 1787 mainly brought with them their experience in running provincial, state, and Confederation government. Collectively they had well over a thousand years of experience in office, from governor and Chief Justice down to mayor and justice of the peace. Of the fifty-five chosen, forty-four were, or had been, members of the CONTINENTAL CONGRESS; at a time when being a lawyer was very different from emerging from a law school assembly line and vanishing into a vacuum-packed corporate enviroment, thirty-five had done their apprenticeships, and JAMES WILSON and GEORGE WYTHE were eminent professors and legists. The only outstanding absentees from the political class were JOHN JAY a secretary of foreign affairs under the Confederation; John Adams in London; Thomas Jefferson in Paris; and PATRICK HENRY who was elected but refused to attend as he "smelt a rat," that is, he thought Jefferson was masterminding the convention through Madison, as had been the case in the Virginia legislature with the VIRGINIA STATUE OF RELIGIOUS LIBERTY.

Although with the exception of Madison and perhaps Hamilton they had not arrived with specific plans, they clearly shared a sense of mission: The United States government under the ARTICLES OF CONFEDERATION had to be strengthened to prevent the infant nation from being eaten by the sharks that infested the international environment. Here the presence of GEORGE WASHINGTON was of immense symbolic value because of his known dedication to the principles of a free republic and the respect he had from the people. Washington was unanimously elected president of the Convention.

The Framers were well aware that they were not free-floating Platonic "guardians" who could impose their concept of a "republic" upon an unresisting populace. Hence, when the final document was signed on September 17, its principal architects considered it the best they could get rather than the fulfillment of an ideal. George Washington put it well in a letter: "You will readily conceive ? the difficulties which the Convention had to struggle against. The various and opposit [ sic ] interests which were to be subdued, the diversity of opinions and sentiments which were to be reconciled; and in fine, the sacrifices which were necessary to be made on all sides for the General Welfare, combined to make it work of so intricate and difficult a nature that I think it is much to be wondered at that any thing could have been produced with such unanimity."

Hamilton and Madison, disappointed by the convention's rebuff to their centralizing initiative, agreed that the Constitution was an improvement over the Articles and set to work to get it ratified. South Carolina's PIERCE BUTLER probably spoke for most of his fellow Framers when he wrote, "View the system then as resulting from a spirit of Accommodation to different Interests, and not the most perfect one that the Deputies cou'd devise for a Country better adapted for the reception of it than America is at this day, or perhaps ever will be."

In the course of RATIFICATION OF THE CONSTITUTION by the state conventions, questions inevitably arose on the meaning of various articles. When one reads the replies that were given?in a universe wholly lacking in modern communications techniques?it rapidly becomes clear that a number of the delegates often were not quite sure what they had approved. They knew that in general terms

Page 1611

they had established a republic with strong legislative and executive branches?the judicial article received little attention either in the Convention or in ratification debates?and hoped that the new government would provide the United States with the authority and the funds that were so sorely lacking under the Articles.

To head off a potentially dangerous demagogic anticonstitutionalist attack?claiming in essence that Hobbes's Leviathan was being covertly imposed on unsuspecting citizens?the Framers promised a BILL OF RIGHTS. The Constitution was ratified, the states organized presidential and congressional elections for that fall, and the Founding Fathers set to work finding appropriate positions for themselves and their friends in the new administration. Now they had to...

To continue reading