Wednesday, July 27, 2011

Madison: Retrospective on the Constitution

"A Sketch Never Finished Nor Applied," written by James Madison in the 1830s, seems to have been intended as an introduction for Madison's notes of the federal convention. As the title says, the thing never got finished or applied; it's also seldom quoted, though it is arguably the best short original source for understanding the movement for and character of the federal constitution.  The original is full of abbreviations and other oddities; I've taken the liberty of modernizing the text in a few particulars. 

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As the weakness and wants of man naturally lead to an association of individuals under a Common Authority, whereby each may have the protection of the whole against danger from without, and enjoy in safety within, the advantages of social intercourse, and an exchange of the necessaries & comforts of life; in like manner feeble communities, independent of each other, have resorted to a Union, less intimate, but with common Councils, for the common safety against powerful neighbors, and for the preservation of justice and peace among themselves. Ancient history furnishes examples of these confederal associations, tho’ with a very imperfect account, of their structure, and of the attributes and functions of the presiding Authority. There are examples of modern date also, some of them still existing, the modifications and transactions of which are sufficiently known.

It remained for the British Colonies, now United States, of North America, to add to those examples, one of a more interesting character than any of them: which led to a system without an example ancient or modern, a system founded on popular rights, and so combining a federal form with the forms of individual Republics, as may enable each to supply the defects of the other and obtain the advantages of both.

Whilst the Colonies enjoyed the protection of the parent Country as it was called, against foreign danger; and were secured by its superintending control, against conflicts among themselves, they continued independent of each other, under a common, tho’ limited dependence, on the Parental Authority. When however the growth of the offspring in strength and in wealth, awakened the jealousy and tempted the avidity of the parent, into schemes of usurpation & exaction, the obligation was felt by the former of uniting their counsels and efforts, to avert the impending calamity.

As early as the year 1754, indications having been given of a design in the British government to levy contributions on the Colonies, without their consent; a meeting of Colonial deputies took place at Albany, which attempted to introduce a compromising substitute, that might at once satisfy the British requisitions, and save their own rights from violation. The attempt had no other effect, than by bringing these rights into a more conspicuous view, to invigorate the attachment to them, on the one side; and to nourish the haughty & encroaching spirit on the other.

In 1774, the progress made by Great Britain in the open assertion of her pretensions, and the apprehended purpose of otherwise maintaining them by Legislative enactments and declarations, had been such that the Colonies did not hesitate to assemble, by their deputies, in a formal Congress, authorized to oppose to the British innovations whatever measures might be found best adapted to the occasion; without however losing sight of an eventual reconciliation.

The dissuasive measures of that Congress, being without effect, another Congress was held in 1775, whose pacific efforts to bring about a change in the views of the other party, being equally unavailing, and the commencement of actual hostilities having at length put an end to all hope of reconciliation; the Congress finding moreover that the popular voice began to call for an entire & perpetual dissolution of the political ties which had connected them with Great Britain proceeded on the memorable 4th of July, 1776 to declare the 13 Colonies Independent States.

During the discussions of this solemn Act, a Committee consisting of member from each colony had been appointed, to prepare & digest a form of Confederation, for the future management of the Common interests, which had hitherto been left to the discretion of Congress, guided by the exigencies of the contest, and by the known intentions or occasional instructions of the Colonial Legislatures.

It appears that as early as the 21st of July 1775, a plan entitled “Articles of Confederation & perpetual Union of the Colonies,” had been sketched by Doctor Franklin, the plan being on that day submitted by him to Congress; and though not copied into their Journals remaining on their files in his handwriting. But notwithstanding the term “perpetual” observed in the title, the articles provided expressly for the event of a return of the Colonies to a connection with G. Britain.

This sketch became a basis for the plan reported by the Come on the 12th of July, now also remaining on the files of Congress, in the handwriting of Mr. Dickinson. The plan, though dated after the Declaration of Independence, was probably drawn up before that event; since the name of Colonies, not States is used throughout the draft. The plan reported, was debated and amended from time to time, till the 17th. of November 1777, when it was agreed to by Congress, and proposed to the Legislatures of the States, with an explanatory and recommendatory letter. The ratifications of these by their Delegates in Congress duly authorized took place at successive dates, but were not completed till March 1, 1781, when Maryland who had made it a prerequisite that the vacant lands acquired from the British Crown should be a common fund, yielded to the persuasion that a final & formal establishment of the federal Union & Govt would make a favorable impression not only on other foreign Nations, but on Great Britain herself.

The great difficulty experienced in so framing the federal system as to obtain the unanimity required for its due sanction, may be inferred from the long interval, and recurring discussions, between the commencement and completion of the work; from the changes made during its progress; from the language of Congress when proposing it to the States, which dwelt on the impracticability of devising a system acceptable to all of them; from the reluctant assent given by some; and the various alterations proposed by others; and by tardiness in others again which produced a special address to them from Congress, enforcing the duty of sacrificing local considerations and favorite opinions to the public safety, and the necessary harmony: Nor was the assent of some of the States finally yielded without strong protests against particular articles, and a reliance on future amendments removing their objections.

It is to be recollected, no doubt, that these delays might be occasioned in some degree, by an occupation of the Public Councils both general & local, with the deliberations and measures, essential to a Revolutionary struggle; But there must have been a balance for these causes, in the obvious motives to hasten the establishment of a regular and efficient Government; and in the tendency of the crisis to repress opinions and pretensions, which might be inflexible in another state of things.

The principal difficulties which embarrassed the progress, and retarded the completion of the plan of Confederation, may be traced to
1. the natural repugnance of the parties to a relinquishment of Power;  
2. a natural jealousy of its abuse in other hands than their own;
3. the rule of suffrage among parties unequal in size, but equal in sovereignty;
4. the ratio of Contributions in money and in troops, among parties, whose inequality in size did not correspond with that of their wealth, or of their military or free population;
5. the selection and definition of the powers, at once necessary to the federal head, and safe to the several members.

To these sources of difficulty, incident to the formation of all such Confederacies, were added two others one of a temporary, the other of a permanent nature. The first was the case of the Crown lands, so called because they had been held by the British Crown, and being ungranted to individuals when its authority ceased, were considered by the States within whose charters or asserted limits they lay, as devolving on them; whilst it was contended by the others, that being wrested from the dethroned Authority, by the equal exertions of all, they resulted of right and in equity to the benefit of all. The lands being of vast extent and of growing value, were the occasion of much discussion & heart-burning; and proved the most obstinate of the impediments to an earlier consummation of the plan of federal Government. The State of Maryland the last that acceded to it held out as already noticed, till the 1. March 1781 and then yielded only to the hope that by giving a stable and authoritative character to the Confederation, a successful termination of the Contest might be accelerated. The dispute was happily compromised by successive surrenders of portions of the territory by the States having exclusive claims to it, and acceptances of them by Congress.

The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports, their commerce was carried on. New Jersey placed between Philadelphia and New York, was likened to a cask tapped at both ends; and North Carolina, between Virginia and South Carolina to a patient bleeding at both arms. The Articles of Confederation provided no remedy for the complaint; which produced a strong protest on the part of New Jersey; and never ceased to be a source of dissatisfaction and discord, until the new Constitution superseded the old.

But the radical infirmity of the “arts. of Confederation” was the dependence of Congress on the voluntary and simultaneous compliance with its Requisitions, by so many independent Communities, each consulting more or less its particular interests and convenience and distrusting the compliance of the others. Whilst the paper emissions of Congress continued to circulate they were employed as a sinew of war, like gold and silver. When that ceased to be the case, and the fatal defect of the political System was felt in its alarming force. The war was merely kept alive and brought to a successful conclusion by such foreign aids and temporary expedients as could be applied; a hope prevailing with many, and a wish with all, that a state of peace, and the sources of prosperity opened by it, would give to the Confederacy in practice, the efficiency which had been inferred from its theory.

The close of the war however brought no cure for the public embarrassments. The States relieved from the pressure of foreign danger, and flushed with the enjoyment of independent and sovereign power; (instead of a diminished disposition to part with it), persevered in omissions and in measures incompatible with their relations to the Federal Government and with those among themselves.

Having served as a member of Congress through the period between March 1780 and the arrival of peace in 1783, I had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to Congress.  I had found moreover that despair of success hung over the compromising provision of April 1783 for the public necessities which had been so elaborately planned, and so impressively recommended to the States. Sympathizing, under this aspect of affairs, in the alarm of the friends of free Government at the threatened danger of an abortive result to the great and perhaps last experiment in its favor, I could not be insensible to the obligation to co-operate as far as I could in averting the calamity. With this view I acceded to the desire of my fellow Citizens of the County that I should be one of its representatives in the Legislature, hoping that I might there best contribute to inculcate the critical posture to which the Revolutionary cause was reduced, and the merit of a leading agency of the State in bringing about a rescue of the Union, and the blessings of liberty staked on it, from an impending catastrophe.

It required but little time after taking my seat in the House of Delegates in May 1784, to discover that however favorable the general disposition of the State might be towards the Confederacy the Legislature retained the aversion of its predecessors to transfers of power from the State to the Govt of the Union; notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Federal System, and the animosity kindled among the States by their conflicting regulations. . . .

The failure however of the varied propositions in the Legislature, for enlarging the powers of Congress, the continued failure of the efforts of Congress to obtain from them the means of providing for the debts of the Revolution; and of countervailing the commercial laws of Great Britain, a source of much irritation & against which the separate efforts of the States were found worse than abortive; these Considerations with the lights thrown on the whole subject, by the free & full discussion it had undergone led to a general acquiescence in the Resolution passed on the 21st of January 1786, which proposed and invited a meeting of Deputies from all the States [“to take into consideration the trade of the United States; to examine the relative situations and trade of said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress effectually to provide for the same.”]

The resolution had been brought forward some weeks before on the failure of a proposed grant of power to Congress to collect a revenue from commerce, which had been abandoned by its friends in consequence of material alterations made in the grant by a Committee of the whole. . . . Being now revived by [Mr. Tyler], on the last day of the Session, and being the alternative of adjourning without any effort for the crisis in the affairs of the Union, it obtained a general vote; less however with some of its friends from a confidence in the success of the experiment than from a hope that it might prove a step to a more comprehensive & adequate provision for the wants of the Confederacy.

It happened also that Commissioners appointed by Virginia and Maryland to settle the jurisdiction on waters dividing the two States had, apart from their official reports, recommended a uniformity in the regulations of the 2 States on several subjects and particularly on those having relation to foreign trade. It appeared at the time that Maryland had deemed a concurrence of her neighbors, Pennsylvania and Delaware, indispensable in such a case, who for like reasons would require that of their neighbors. So apt and forcible an illustration of the necessity of a uniformity throughout all the States could not but favor the passage of a Resolution which proposed a Convention having that for its object.

The commissioners appointed by the Legislature & who attended the Convention were Edmund Randolph, the attorney of the state, St. George Tucker and James Madison. The designation of the time and place to be proposed for its meeting, and communicated to the states having been left to the Commissioners they named for the time early September and for the place the City of Annapolis avoiding the residences of Congress and large Commercial Cities as liable to suspicions of an extraneous influence.

Although the invited Meeting appeared to be generally favored, five states only assembled; some failing to make appointments, and some of the individuals appointed not hastening their attendance, the result in both cases being ascribed mainly, to a belief that the time had not arrived for such a political reform, as might be expected from a further experience of its necessity.

But in the interval between the proposal of the Convention, and the time of its meeting such had been the advance of public opinion in the desired direction, stimulated as it had been by the effect of the contemplated object, of the meeting, in turning the general attention to the Critical State of things, and in calling forth the sentiments and exertions of the most enlightened and influential patriots, that the Convention thin as it was did not scruple to decline the limited task assigned to it and to recommend to the States a Convention with powers adequate to the occasion. Nor was it unnoticed that the commission of the New Jersey Deputation had extended its object to a general provision for the exigencies of the Union. A recommendation for this enlarged purpose was accordingly reported by a Committee to whom the subject had been referred. It was drafted by Colonel Hamilton, and finally agreed to unanimously in the following form. [See here]

The recommendation was well received by the Legislature of Virginia, which happened to be the first that acted on it, the example of her compliance was made as conciliatory and impressive as possible. The Legislature were unanimous or very nearly so on the occasion, and as a proof of the magnitude and solemnity attached to it, they placed General Washington at the head of the Deputation from the State; and as a proof of the deep interest he felt in the case he overstepped the obstacles to his acceptance of the appointment. . . .

As the public mind had been ripened for a salutary Reform of the political System, in the interval between the proposal and the meeting of the Commissioners at Annapolis, the interval between the last event, and the meeting of Deputies at Philadelphia had continued to develop more and more the necessity and the extent of a systematic provision for the preservation and Government of the Union. Among the ripening incidents was the Insurrection of Shays, in Massachusetts, against her Government; which was with difficulty suppressed, notwithstanding the influence on the insurgents of an apprehended interposition of the Federal troops.

At the date of the Convention, the aspect and retrospect of the political condition of the United States could not but fill the public mind with a gloom which was relieved only by a hope that so select a Body would devise an adequate remedy for the existing and prospective evils so impressively demanding it.

It was seen that the public debt rendered so sacred by the cause in which it had been incurred remained without any provision for its payment. The reiterated and elaborate efforts of Congress to procure from the States a more adequate power to raise the means of payment had failed. The effect of the ordinary requisitions of Congress had only displayed the inefficiency of the authority making them; none of the States having duly complied with them, some having failed altogether or nearly so; and in one instance, that of New Jersey, a compliance was expressly refused; nor was more yielded to the expostulations of members of Congress deputed to her Legislature, than a mere repeal of the law, without a compliance.

The want of Authority in Congress to regulate Commerce had produced in Foreign nations particularly Great Britain, a monopolizing policy injurious to the trade of the U. S., and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishing all apprehensions of a Countervailing policy on the part of the U. States.

The same want of a general power over Commerce led to an exercise of the power separately, by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighboring ports, and to coerce a relaxation of the British monopoly of the West Indies navigation, which was attempted by Virginia, the States having ports for foreign commerce, taxed and irritated the adjoining States, trading through them, as New York, Pennsylvania, Virginia and South Carolina. Some of the States, as Connecticut, taxed imports as from Massachusetts, higher than imports even from Great Britain of which Massachusetts complained to Virginia and doubtless to other States. In sundry instances as of New York, New Jersey, Pennsylvania, and Maryland, the navigation laws treated the Citizens of other States as aliens.

In certain cases the Authority of the Confederacy was disregarded, as in violation not only of the Treaty of peace; but of Treaties with France & Holland, which were complained of to Congress.

In other cases the Federal Authority was violated by Treaties & wars with Indians, as by Georgia; by troops raised and kept up without the consent of Congress, as by Massachusetts; by compacts without the consent of Congress, as between Pennsylvania and New Jersey, and between Virginia and Maryland. From the Legislative Journals of Virginia it appears, that a vote refusing to apply for a sanction of Congress was followed by a vote against the communication of the Compact to Congress.

In the internal administration of the States a violation of Contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Installment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, relatively creditor, as well as Citizens Creditors within the State.

Among the defects which had been severely felt was that of a uniformity in cases requiring it, as laws of naturalization and bankruptcy, a Coercive authority operating on individuals and a guaranty of the internal tranquility of the States.

As a natural consequence of this distracted and disheartening condition of the union, the Federal Authority had ceased to be respected abroad, and dispositions were shewn there, particularly in Great Britain, to take advantage of its imbecility, and to speculate on its approaching downfall; at home it had lost all confidence and credit; the unstable and unjust career of the States had also forfeited the respect and confidence essential to order and good Government involving a general decay of confidence between man & man. It was found moreover that those least partial to popular Government, or most distrustful of its efficacy were yielding to anticipations, that from an increase of the confusion a Government might result more congenial with their taste or their opinions; whilst those most devoted to the principles and forms of Republics, were alarmed for the cause of liberty itself, at stake in the American Experiment, and anxious for a system that would avoid the inefficacy of a mere confederacy without passing into the opposite extreme of a consolidated government. It was known that there were individuals who had betrayed a bias towards Monarchy and there had always been some not unfavorable to a partition of the Union into several Confederacies; either from a better chance of figuring on a Sectional Theatre, or that the Sections would require stronger Governments, or by their hostile conflicts lead to a monarchical consolidation. The idea of a dismemberment had recently made its appearance in the Newspapers.

Such were the defects, the deformities, the diseases and the ominous prospects, for which the Convention were to provide a remedy, and which ought never to be overlooked in expounding and appreciating the Constitutional Charter, the remedy that was provided.

As a sketch on paper, the earliest perhaps which of a Constitutional Government for the Union (organized into the regular Departments with physical means operating on individuals) to be sanctioned by the people of the States, acting in their original & sovereign character, was contained in a letter from James Madison of April 8 1787 to Governor Randolph.

The feature in the letter which vested in the general Authority a negative on the laws of the States, was suggested by the negative in the head of the British Empire, which prevented collisions between the parts and the whole, and between the parts themselves. It was supposed that the substitution, of an elective and responsible authority for an hereditary and irresponsible one, would avoid the appearance even of a departure from the principle of Republicanism. But although the subject was so viewed in the Convention, and the votes on it were more than once equally divided, it was finally and justly abandoned, as apart from other objections it was not practicable among so many states increasing in number and enacting each of them so many laws. Instead of the proposed negative, the objects of it were left as finally provided for in the Constitution.

On the arrival of the Virginia Deputies at Philadelphia, it occurred to them that from the early and prominent part taken by that State in bringing about the Convention some initiative step might be expected from them. The Resolutions introduced by Governor Randolph were the result of a Consultation on the subject; with an understanding that they left all the Deputies entirely open to the lights of discussion, and free to concur in any alterations or modifications which their reflections and judgments might approve. The Resolutions as the Journals show became the basis on which the proceedings of the Convention commenced, and to the developments, variations and modifications of which the plan of Government proposed by the Convention may be traced.

The curiosity I had felt during my researches into the History of the most distinguished Confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it more especially in what related to the process, the principles, the reasons, & the anticipations, which prevailed in the formation of them, determined me to preserve as far as I could an exact account of what might pass in the Convention whilst executing its trust, with the magnitude of which I was duly impressed, as I was with the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, and the reasonings from which the new System of Government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials for the History of a Constitution on which would be Staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world.

In pursuance of the task I had assumed I chose a seat in front of the presiding member, with the other members on my right & left hands. In this favorable position for hearing all that passed, I noted in terms legible & in abbreviations & marks intelligible to myself what was read from the Chair or spoken by the members; and losing not a moment unnecessarily between the adjournment & reassembling of the Convention I was enabled to write out my daily notes during the session or within a few finishing days after its close, in the extent and form preserved in my own hand on my files. . . .

Of the ability and intelligence of those who composed the Convention the debates and proceedings may be a test; as the character of the work which was the offspring of their deliberations must be tested by the experience of the future, added to that of nearly half a century which has passed.

But whatever may be the judgment pronounced on the competency of the architects of the Constitution, or whatever may be the destiny of the edifice prepared by them, I feel it a duty to express my profound and solemn conviction, derived from my intimate opportunity of observing and appreciating the views of the Convention, collectively and individually, that there never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787, to the object of devising and proposing a constitutional system which should best supply the defects of that which it was to replace, and best secure the permanent liberty and happiness of their country.