¹ The view that the right to vote in the states was severely circumscribed by property qualifications has been thoroughly discredited in recent years. See Williamson, Chilton, American Suffrage from Property to Democracy, 1760–1860 (Princeton, 1960)Google Scholar. The contemporary position is that John Dickinson actually knew what he was talking about when he argued that there would be little opposition to vesting the right of suffrage in freeholders since “The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it.” Farrand, Max, Records of the Federal Convention, Vol. 2, p. 202 (New Haven, 1911)Google Scholar. (Henceforth cited as Farrand.)

² The classic statement of the coup d'etat theory is, of course, Beard, Charles A., An Economic Interpretation of the Constitution of the United States (New York, 1913)Google Scholar, and this theme was echoed by Vernon L. Parrington, Merrill Jensen and others in “populist” historiographical tradition. For a sharp critique of this thesis see Brown, Robert E., Charles Beard and the Constitution (Princeton, 1956)CrossRefGoogle Scholar. See also McDonald, Forrest, We the People (Chicago, 1958)Google Scholar; the trailblazing work in this genre was Adair, Douglas, “The Tenth Federalist Revisited,” William and Mary Quarterly, Third Series, Vol. VIII (1951), pp. 48–67 CrossRefGoogle Scholar.

³ A basic volume, which, like other works by Warren, provides evidence with which one can evaluate the author's own opinions, is Warren, Charles, The Making of the Constitution (Boston, 1928)Google Scholar. The best brief summary of the forces behind the movement for centralization is Chapter 1 of Warren (as it will be cited hereafter).

⁴ On Pennsylvania see Brunhouse, Robert L., Counter-Revolution in Pennsylvania (Harrisburg, 1942 Google Scholar) and Smith, Charles P., James Wilson (Chapel Hill, 1956)Google Scholar, ch. 15; for New York, which needs the same sort of microanalysis Pennsylvania has received, the best study is Spaulding, E. Wilder, New York in the Critical Period, 1783–1789 (New York, 1932)CrossRefGoogle Scholar.

⁵ Elkins, Stanley and McKitrick, Eric, “The Founding Fathers: Young Men of the Revolution,” Political Science Quarterly, Vol. 76, p. 181 (1961)CrossRefGoogle Scholar.

⁶ Warren, p. 55.

⁷ In La Republique des Camarades (Paris, 1914)Google Scholar.

⁸ See Monaghan, Frank, John Jay (New York, 1935)Google Scholar, ch. 13.

⁹ “[T]he situation of the general government, if it can be called a government, is shaken to its foundation, and liable to be overturned by every blast. In a word, it is at an end; and, unless a remedy is soon applied, anarchy and confusion will inevitably ensue.” Washington to Jefferson, May 30, 1787, Farrand, III, 31 Google Scholar. See also Brant, Irving, James Madison, The Nationalist (New York, 1948)Google Scholar, ch. 25.

¹⁰ Jensen, Merrill, The New Nation (New York, 1950)Google Scholar. Interestingly enough, Prof. Jensen virtuually ignores international relations in his laudatory treatment of the government under the Articles of Confederation.

¹¹ The story of James Madison's cultivation of Washington is told by Brant, op. cit., pp. 394–97.

¹² The “message center” being the Congress; nineteen members of Congress were simultaneously delegates to the Convention. One gets a sense of this coordination of effort from Mitchell, Broadus, Alexander Hamilton, Youth to Maturity (New York, 1957)Google Scholar, ch. 22.

¹³ See SirNamier, Lewis, The Structure of Politics at the Accession of George III, 2d ed. (New York, 1957)Google Scholar; England in the Age of the American Revolution (London, 1930)Google Scholar.

¹⁴ The Annapolis Convention, called for the previous year, turned into a shambles: only five states sent commissioners, only three states were legally represented, and the instructions to delegates named varied quite widely from state to state. Clinton and others of his persuasion may have thought this disaster would put an end to the drive for reform. See Mitchell, op. cit., pp. 362–67; Brant, op. cit., pp. 375–87.

¹⁵ See Bishop, Hamilton M., Why Rhode Island Opposed the Federal Constitution (Providence, 1950)Google Scholar for a careful analysis of the labyrinthine political course of Rhode Island. For background see Lovejoy, David S., Rhode Island Politics and the American Revolution (Providence, 1958)Google Scholar.

¹⁶ The terms “radical” and “conservative” have been bandied about a good deal in connection with the Constitution. This usage is nonsense if it is employed to distinguish between two economic “classes”—e.g., radical debtors versus conservative creditors, radical farmers versus conservative capitalists, etc.—because there was no polarization along this line of division; the same types of people turned up on both sides. And many were hard to place in these terms: does one treat Robert Morris as a debtor or a creditor? or James Wilson? See Brown, op. cit., passim. The one line of division that holds up is between those deeply attached to states'-rights and those who felt that the Confederation was bankrupt. Thus, curiously, some of the most narrow-minded, parochial spokesmen of the time have earned the designation “radical” while those most willing to experiment and alter the status quo have been dubbed “conservative”! See Kenyon, Cecelia, “Men of Little Faith,” William and Mary Quarterly, Vol. 12, p. 3 (1955).CrossRefGoogle Scholar

¹⁷ Yet, there was little objection to this crucial modification from any quarter—there almost seems to have been a gentlemen's agreement that Rhode Island's liberum veto had to be destroyed.

¹⁸ See Mason's letter to his son, May 27, 1787, in which he endorsed secrecy as “a proper precaution to prevent mistakes and misrepresentation until the business shall have been completed, when the whole may have a very different complexion from that in which the several crude and indigested parts might in their first shape appear if submitted to the public eye.” Farrand, III, 28 Google Scholar.

¹⁹ See Madison to Jefferson, June 6, 1787, Farrand, III, 35 Google Scholar.

²⁰ Cited in Warren, p. 138.

²¹ See, e.g., Dietze, Gottfried, The Federalist, A Classic on Federalism and Free Government (Baltimore, 1960)Google Scholar; Hofstadter, Richard, The American Political Tradition (New York, 1948)Google Scholar; and Roche, John P., “American Liberty,” in Konvitz, M. and Rossiter, C., eds., Aspects of Liberty (Ithaca, 1958)Google Scholar.

²² “I hold it for a fundamental point, that an individual independence of the states is utterly irreconcilable with the idea of an aggregate sovereignty,” Madison to Randolph, cited in Brant, op. cit., p. 416.

²³ The Randolph Plan was presented on May 29, see Farrand, I, 18–23 Google Scholar; the state legislatures retained only the power to nominate candidates for the upper chamber. Madison's view of the appropriate position of the states emerged even more strikingly in Yates' record of his speech on June 29: “Some contend that states are sovereign when in fact they are only political societies. There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty …. The states, at present, are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general confederation. The states ought to be placed under the control of the general government—at least as much so as they formerly were under the king and British parliament.” Farrand, I, 471 Google Scholar. Forty-six years later, after Yates' “Notes” had been published, Madison tried to explain this statement away as a misinterpretation: he did not flatly deny the authenticity of Yates' record, but attempted a defense that was half justification and half evasion. Madison to Rives, W. C., Oct. 21, 1833. Farrand, III, 521–24Google Scholar.

²⁴ Resolution 6 gave the National Legislature this power subject to review by the Council of Revision proposed in Resolution 8.

²⁵ Resolution 6.

²⁶ Ibid.

²⁷ See the discussions on May 30 and 31. “Mr. Charles Pinkney wished to know of Mr. Randolph whether he meant to abolish the State Governts. altogether … Mr. Butler said he had not made up his mind on the subject and was open to the light which discussion might throw on it … Genl. Pinkney expressed a doubt … Mr. Gerry seemed to entertain the same doubt.” Farrand, I, 33–34 Google Scholar. There were no denunciations—though it should perhaps be added that Luther Martin had not yet arrived.

²⁸ Farrand, I, 54 Google Scholar. (Italics added.)

²⁹ Ibid., p. 242. Delaware's delegates had been instructed by their general assembly to maintain in any new system the voting equality of the states. Farrand, III, 574 Google Scholar.

³⁰ Ibid., p. 240.

³¹ Ibid., p. 250.

³² Ibid., p. 258.

³³ Ibid., p. 178.

³⁴ Ibid., p. 274.

³⁵ Ibid., pp. 275–76.

³⁶ “But it is said that this national government is to act on individuals and not on states; and cannot a federal government be so framed as to operate in the same way? It surely may.” Ibid., pp. 182–83; also ibid. at p. 276.

³⁷ Farrand, III, 613 Google Scholar.

³⁸ Farrand, I, 177 Google Scholar.

³⁹ Ibid., p. 182.

⁴⁰ Ibid., p. 255.

⁴¹ J. C. Hamilton, cited Ibid., p. 293.

⁴² See, e.g., Mitchell, op. cit., p. 381.

⁴³ Hamilton to Washington, July 3, 1787, Farrand, III, 53 Google Scholar.

⁴⁴ A reconstruction of the Hamilton Plan is found in Farrand, III, 617–30Google Scholar.

⁴⁵ Said William Samuel Johnson on June 21: “A gentleman from New-York, with boldness and decision, proposed a system totally different from both [Virginia and New Jersey]; and though he has been praised by every body, he has been supported by none.” Farrand, I, 363 Google Scholar.

⁴⁶ See his letter to Washington cited supra note 43.

⁴⁷ Farrand, III, 338 Google Scholar.

⁴⁸ Farrand, I, 321 Google Scholar.

⁴⁹ Maryland's politics in this period were only a bit less intricate than Rhode Island's: the rural gentry, in much the same fashion that Namier described in England, divided up among families—Chases, Carrolls, Pacas, Lloyds, Tilghmans, etc.—and engaged in what seemed, to the outsider, elaborate political Morris dances. See Crowl, Philip A., Maryland During and After the Revolution (Baltimore, 1943)Google Scholar. The Maryland General Assembly named five delegates to the Convention and provided that “the said Deputies or such of them as shall attend … shall have full Power to represent this State,” Farrand, III, 586 Google Scholar. The interesting circumstance was that three of the delegates were Constitutionalists (Carroll, McHenry and Jenifer), while two were opposed (Martin and Mercer); and this led to an ad hoc determination of where Maryland would stand when votes were taken. The vote on equality of representation, to be described infra, was an important instance of this eccentricity.

⁵⁰ This formulation was voted into the Randolph Plan on May 30, 1787, by a vote of six states to none, with one divided. Farrand, I, 30 Google Scholar.

⁵¹ Farrand, I, 335–36Google Scholar. In agreeing, Randolph stipulated his disagreement with Ellsworth's rationale, but said he did not object to merely changing an “expression.” Those who subject the Constitution to minute semantic analysis might do well to keep this instance in mind; if Randolph could so concede the deletion of “national,” one may wonder if any word changes can be given much weight.

⁵² According to Luther Martin, he was alone on the floor and cast Maryland's vote for equality of representation. Shortly thereafter, Jenifer came on the floor and “Mr. King, from Massachusetts, valuing himself on Mr. Jenifer to divide the State of Maryland on this question … requested of the President that the question might be put again; however, the motion was too extraordinary in its nature to meet with success.” Cited from “The Genuine Information, …” Farrand, III, 188 Google Scholar.

⁵³ Namely Baldwin's vote for equality of representation which divided Georgia—with Few absent and Pierce in New York fighting a duel, Houston voted against equality and Baldwin shifted to tie the state. Baldwin was originally from Connecticut and attended and tutored at Yale, facts which have led to much speculation about the pressures the Connecticut delegation may have brought on him to save the day (Georgia was the last state to vote) and open the way to compromise. To employ a good Russian phrase, it was certainly not an accident that Baldwin voted the way he did. See Warren, p. 262.

⁵⁴ For various contemporary comments, see Warren, pp. 814–818. On Adams' technique, see Haraszti, Zoltan, “The Composition of Adams' Defense, ” in John, Adams and the Prophets of Progress (Cambridge, 1952)CrossRefGoogle Scholar, ch. 9. In this connection it is interesting to check the Convention discussions for references to the authority of Locke, Montesquieu and Harrington, the theorists who have been assigned various degrees of paternal responsibility. There are no explicit references to James Harrington; one to John Locke (Luther Martin cited him on the state of nature, Farrand, I, 437)Google Scholar; and seven to Montesquieu, only one of which related to the “separation of powers” (Madison in an odd speech, which he explained in a footnote was given to help a friend rather than advance his own views, cited Montesquieu on the separation of the executive and legislative branches, Farrand, II, 34)Google Scholar. This, of course, does not prove that Locke and Co. were without influence; it shifts the burden of proof, however, to those who assert ideological causality. See Wright, Benjamin F., “The Origins of the Separation of Powers in America,” Economica, Vol. 13 (1933), p. 184 Google Scholar.

⁵⁵ I share Willmoore Kendall's interpretation of Locke as a supporter of parliamentary supremacy and majoritarianism; see Kendall, , John Locke and the Doctrine of Majority Rule (Urbana, 1941)Google Scholar. Kendall's general position has recently received strong support in the definitive edition and commentary of Laslett, Peter, Locke's Two Treatises of Government (Cambridge, 1960)Google Scholar.

⁵⁶ The American Locke is best delineated in Becker, Carl, The Declaration of Independence (New York, 1948)Google Scholar.

⁵⁷ See Roche, John P., “The Electoral College: A Note on American Political Mythology,” Dissent (Spring, 1961), pp. 197–99Google Scholar. The relevant debates took place July 19–26, 1787, Farrand, II, 50–128 Google Scholar, and September 5–6, 1787, Ibid., pp. 505–31.

⁵⁸ See the discussion on August 22, 1787, Farrand, II, 366–375 Google Scholar; King seems to have expressed the sense of the Convention when he said, “the subject should be considered in a political light only.” Ibid. at 373.

⁵⁹ Farrand, II, 374 Google Scholar. Randolph echoed his sentiment in different words.

⁶⁰ Mason to Jefferson, cited in Warren, p. 584.

⁶¹ August 29, 1787, Farrand, II, 449–50Google Scholar.

⁶² Ibid., p. 451. The plainest statement of the matter was put by the three North Carolina delegates (Blount, Spaight and Williamson) in their report to Governor Caswell, September 18, 1787. After noting that “no exertions have been wanting on our part to guard and promote the particular interest of North Carolina,” they went on to explain the basis of the negotiations in coldblooded fashion: “While we were taking so much care to guard ourselves against being over reached and to form rules of Taxation that might operate in our favour, it is not to be supposed that our Northern Brethren were Inattentive to their particular Interest. A navigation Act or the power to regulate Commerce in the Hands of the National Government … is what the Southern States have given in Exchange for the advantages we Mentioned.” They concluded by explaining that while the Constitution did deal with other matters besides taxes—“there are other Considerations of great Magnitude involved in the system”—they would not take up valuable time with boring details! Farrand, III, 83–84 Google Scholar.

⁶³ See Calhoun, John C., A Disquisition on Government (New York, 1943), pp. 21–25, 38 Google Scholar. Calhoun differed from Mason, and others in the Convention who urged the two-thirds requirement, by advocating a functional or interest veto rather than some sort of special majority, i.e., he abandoned the search for quantitative checks in favor of a qualitative solution.

⁶⁴ The Committee on Detail altered the general grant of legislative power envisioned by the Virginia Plan into a series of specific grants; these were examined closely between August 16 and August 23. One day only was devoted to the Judicial Article, August 27, and since no one raised the question of judicial review of Federal statutes, no light was cast on the matter. A number of random comments on the power of the judiciary were scattered throughout the discussions, but there was another variable which deprives them of much probative value: the proposed Council of Revision which would have joined the Executive with the judges in legislative review. Madison and Wilson, for example, favored this technique—which had nothing in common with what we think of as judicial review except that judges were involved in the task.

⁶⁵ For what it may be worth, I think that judicial review of congressional acts was logically on all fours with review of state enactments and that it was certainly consistent with the view that the Constitution could not be amended by the Congress and President, or by a two-thirds vote of Congress (overriding a veto), without the agreement of three-quarters of the states. External evidence from that time supports this view, see Warren, Charles, Congress, the Constitution, and the Supreme Court (Boston, 1925), pp. 41–128 Google Scholar, but the debates in the Convention prove nothing.

⁶⁶ Or so Madison stated, Farrand, II, 643 Google Scholar. Wilson too may have contributed; he was close to Franklin and delivered the frail old gentleman's speeches for him.

⁶⁷ See a very interesting letter, from an unknown source in Philadelphia, to Jefferson, October 11, 1787: “Randolph wishes it well, & it is thought would have signed it, but he wanted to be on a footing with a popular rival.” Farrand, III, 104 Google Scholar. Madison, writing Jefferson a full account on October 24, 1787, put the matter more delicately—he was working hard on Randolph to win him for ratification: “[Randolph] was not inveterate in his opposition, and grounded his refusal to subscribe pretty much on his unwillingness to commit himself, so as not to be at liberty to be governed by further lights on the subject.” Ibid., p. 135.

⁶⁸ See Smith, Edward P., “The Movement Towards a Second Constitutional Convention in 1788,” in Jameson, J. F., ed., Essays in the Constitutional History of the United States (Boston, 1889), pp. 46–115 Google Scholar.

⁶⁹ See Bishop, op. cit., passim.

⁷⁰ See Elliot's Debates on the Federal Constitution (Washington, 1836), Vol. 3, pp. 436–438 Google Scholar.

⁷¹ This should be quoted to give the full flavor: “Without vanity, I may say I have had different experience of [militia] service from that of [Henry]. It was my fortune to be a soldier of my country…. I saw what the honorable gentleman did not see—our men fighting….” Ibid., p. 178.

⁷² Ibid., p. 329.

⁷³ Washington offered him the Chief Justiceship in 1796, but he declined; Warren, Charles, The Supreme Court in United States History (Boston, 1947), Vol. 1, p. 139 Google Scholar.

⁷⁴ He was a zealous prosecutor of seditions in the period 1798–1800; with Justice Samuel Chase, like himself an alleged “radical” at the time of the Constitutional Convention, Martin hunted down Jeffersonian heretics. See Smith, James M., Freedom's Fetters (Ithaca, 1956), pp. 342–43Google Scholar.

⁷⁵ Crosskey in his sprawling Politics and the Constitution (Chicago, 1953), 2 vols.Google Scholar, has developed with almost unbelievable zeal and intricacy the thesis that the Constitution was designed to establish a centralized unitary state, but that the political leadership of the Republic in its formative years betrayed this ideal and sold the pass to states'-rights. While he has unearthed some interesting newspaper articles and other material, it is impossible for me to accept his central proposition. Madison and the other delegates, with the exceptions discussed in the text supra, did want to diminish the power of the states and create a vigorous national government. But they were not fools, and were, I submit, under no illusions when they departed from Philadelphia that this end had been accomplished. The crux of my argument is that political realities forced them to water down their objectives and they settled, like the good politicians they were, for half a loaf. The basic difficulty with Crosskey's thesis is that he knows too much—he assumes that the Framers had a perfectly clear idea of the road they were taking; with a semantic machete he cuts blandly through all the confusion on the floor of the meeting to the real meanings. Thus, despite all his ornate research apparatus, there is a fundamentally nonempirical quality about Crosskey's work: at crucial points in the argument he falls back on a type of divination which can only be described as Kabbalistic. He may be right, for example, in stating (without any proof) that Richard Henry Lee did not write the “Letters from a Federal Farmer,” but in this country spectral evidence has not been admissible since the Seventeenth Century.