Constitutional Government & Its Limits — Print · U.S. & New York History: Indigenous Nations to Reconstruction, Grade 7

Part 1 · A government that could ask

The men who wrote the Articles during a war against a distant taxing power built exactly what you would expect: a Congress that could not tax. Requisitions were apportioned among the states, and a state that simply did not pay faced no consequence, because there was no mechanism to make it. In 1781 and again in 1783 Congress proposed an impost — a modest duty on imports to fund the debt — and both times it failed, the first blocked by Rhode Island alone, since amendment required all thirteen.

That created the worst kind of collective problem. A state that paid its share while others did not was simply subsidising its neighbours, so the sensible thing for each was to wait. By the mid-1780s the national government was months behind on interest to foreign creditors and had effectively stopped paying its own veterans.

The Articles did achieve something substantial, and it is worth saying. The Northwest Ordinance of 1787 organised the territory north of the Ohio, provided for new states to enter on equal terms with the old rather than as colonies, and barred slavery from the territory. That principle — that expansion creates equals, not dependencies — shaped the whole later map.

Part 2 · Shays’ Rebellion

The crisis arrived in western Massachusetts. The state had taken on a heavy war debt and chose to pay it down fast, through taxes demanded in hard coin at a time when farmers had almost none. Courts foreclosed on farms and jailed debtors; veterans who had been paid in near-worthless certificates were losing land to creditors who had bought those certificates cheaply.

In 1786 farmers began closing the county courts by force to stop foreclosures. Daniel Shays, a former Continental Army captain who had fought at Bunker Hill and Saratoga, became the best-known leader of a movement several thousand strong. In January 1787 about fifteen hundred of them marched on the federal arsenal at Springfield and were dispersed by cannon fire.

The rebels were not a mob and said so in their own petitions. They asked for paper money, for courts to sit less often, and for taxes to fall on trade rather than on land — the ordinary demands of people being squeezed, pressed through the channels available before they closed the courts. Several had fought the whole war. Shays had been commended for bravery at Saratoga and had sold the ceremonial sword Lafayette gave him to pay a debt. The men suppressing them were in many cases the creditors holding their paper.

What frightened the political class was not the rebellion's strength but the government's weakness. Congress could raise no force; the militia that finally suppressed it was paid for by a subscription from Boston merchants. Washington, in retirement, wrote in alarm asking what a government was worth that could not protect itself. The Convention in Philadelphia met four months later.

Part 3 · A convention that exceeded its brief

Congress called the Philadelphia convention of 1787 “for the sole and express purpose of revising the Articles of Confederation.” The fifty-five delegates who came decided within days to do something else entirely: to abandon the Articles and write a new frame of government.

They also worked in secret. Windows were shut in a Philadelphia summer, guards posted, and delegates bound not to discuss proceedings. Madison's notes, the fullest record, were not published until 1840, after the last delegate had died. The secrecy let men change their minds without defending every shift in public, and it also meant the country first saw the document as a finished thing.

Who was in the room shaped what came out of it. The fifty-five were lawyers, merchants, planters and veterans — the wealthiest and best-connected men in America, more than half of them holding government securities that would gain value under a stronger government, and about twenty-five enslaving people. Rhode Island refused to send anyone at all. No women, no Native delegates, no Black Americans, nobody poor and nobody from the debtor side of the Massachusetts quarrel took part.

Then there is what they claimed. The Articles required all thirteen states to amend; the new Constitution declared itself in force once nine states ratified, and it bypassed the state legislatures in favour of specially elected conventions. The men who wrote it knew it was irregular, and argued that the authority of the people assembled in convention outranked the procedure of an existing compact. It is a revolution conducted by lawyers.

Part 4 · Reading the Constitution as a list of fixes

The most useful way into the document is to read each power as an answer to a failure you have just met. Congress could not tax; the Constitution gives it the power to lay and collect taxes directly from people, without asking states. States taxed each other's goods; the commerce clause gives Congress authority over interstate trade.

There was no executive to act between sessions or command forces; the Constitution creates a president. There was no national court to settle disputes between states or interpret treaties; it creates a Supreme Court. Treaties could not be enforced against state law; the supremacy clause makes federal law and treaties binding on state judges. Unanimity made amendment impossible; the new rule requires three-quarters, which is hard rather than hopeless.

The fixes were not guesses. Delegates had lived the failures: Madison had spent 1786 collecting evidence of the Confederation’s breakdown for a paper he wrote before the Convention; Hamilton had served as Washington’s aide watching an army go unpaid; Washington had commanded it. When the Constitution gives Congress power over interstate commerce, that answers Maryland and Virginia quarrelling over the Potomac in 1785, which is the dispute that produced the Annapolis meeting of 1786 and then the call for Philadelphia.

Shays appears in the document too, in the clauses on suppressing insurrections and on guaranteeing each state a republican form of government. Almost every substantive grant of power in the original Constitution can be traced to something that went wrong between 1781 and 1787, which is why the failures are worth knowing before the solutions.

Part 1 · Three branches, and what each can stop

Congress writes law, raises taxes and controls spending — the power of the purse, which you have already seen colonial assemblies use against royal governors. It can also impeach and remove executive and judicial officers. The president signs or vetoes bills, commands the armed forces, conducts foreign relations and nominates judges and officials. The courts decide cases, and federal judges hold office for life so that they need not please anyone to keep their posts.

The levers between them are what matter. A president can veto a bill; Congress can override with two-thirds of both chambers, which is deliberately hard. A president nominates judges; the Senate confirms or refuses. Congress declares war; the president directs it. Congress passes a budget; the executive spends it.

The two chambers are themselves a check on each other, and were designed on different principles. The House is apportioned by population and elected every two years, so it answers quickly to whoever is angry this season. The Senate gives every state two seats regardless of size, and until the Seventeenth Amendment in 1913 its members were chosen by state legislatures rather than voters, with six-year terms staggered so only a third face election at once. A bill must satisfy both a chamber built to respond and one built to resist.

Notice that each lever requires the other branch to act. A veto is not a decision to end a bill, it is a demand for a larger majority. Confirmation is not a formality, it is a second and independent judgement. The design makes unilateral action nearly impossible, which is the point rather than a flaw.

Part 2 · Federalism: two governments over the same ground

Every American lives under two governments at once. The national government holds enumerated powers listed in the Constitution: coining money, regulating interstate and foreign commerce, declaring war, running the post. The states hold what the Tenth Amendment calls the powers not delegated — historically most of criminal law, property, contracts, marriage, schools and local government.

Some powers are held by both. Taxing is the clearest: federal income tax and state sales or income taxes operate side by side, which is why your situation depends on which state you live in. Where the two conflict, the supremacy clause makes valid federal law prevail, and that clause is a direct answer to the Confederation's inability to make state courts honour treaties.

Federalism also explains something students notice early: why so much of daily life varies across a state line. Marriage ages, speed limits, school curricula, the voting age for local elections, which crimes carry which penalties and whether homeschooling requires notice are all state questions, which is why the homeschool law pages on this site run to fifty-one different answers. The Constitution of 1787 is the reason that list is not one page long.

The boundary has never been settled and was not meant to be. Whether a power belongs to Washington or to Albany has been argued in nearly every decade since 1789, through the Marshall Court, the nullification crisis, the Civil War, the New Deal and since. The Constitution set up the argument rather than ending it.

Part 3 · The power nobody wrote down

The most consequential power of the courts does not appear in the Constitution. Nothing in the text says the Supreme Court may declare an act of Congress unconstitutional. The Court claimed that authority for itself in Marbury v. Madison in 1803, reasoning that if the Constitution is law and judges decide what law means, a judge faced with a statute conflicting with it must follow the higher one.

The circumstances were politically delicate, and Marshall's solution was adroit: the Court ruled against Marbury, who was seeking his commission, so no official was ordered to do anything and the decision could not be defied — while establishing a far greater power in the reasoning.

Judicial review is now so familiar that it is easy to assume it was designed. It was argued for in Federalist 78 and assumed by some delegates, but it was not enacted; it was asserted and then accepted. That is worth remembering whenever someone says the Constitution clearly requires something — one of its central features is a judicial claim that stuck.

Part 4 · Why slow was the point

The framers had watched state legislatures in the 1780s pass paper-money laws and debtor relief that wiped out creditors, reverse them, and reverse them again. They concluded that an unchecked majority could be as dangerous as a king, and that what a republic needed was not speed but friction.

History has tested the friction repeatedly, and the record is mixed in exactly the way the design predicts. The Senate rejected the Treaty of Versailles in 1919 despite a president who had negotiated it. The Court struck down New Deal statutes in 1935 and 1936 until the political pressure shifted. Only twenty-seven amendments have passed since 1789, and one of them repealed another. Each of those is the machinery working, and reasonable people disagree about every one of them.

So the machinery is full of delay by design: two chambers chosen differently and on different cycles, a presidential term that does not align with congressional ones, judges serving for life, and an amendment rule needing two-thirds of Congress and three-quarters of the states. A measure that cannot survive several independent agreements over time does not become law.

The cost is real and worth naming. The same friction that blocks a bad law blocks a good one, and the same structure that protected creditors in the 1780s protected slavery for seventy years, because abolishing it required majorities that the South could always block. When you reach the sectional crisis in chapter seven, remember that the deadlock was not a failure of the system. It was the system working as designed, on a question where the design made the outcome intolerable.

Part 1 · Six weeks of deadlock

The argument was not about fairness in the abstract but about who would be outvoted. The four largest states held roughly half the population of the whole country; under the Virginia Plan they would control both chambers permanently. Delaware's delegates had been instructed to walk out if equal state votes were abandoned, and said so.

The small states' case was that the Union was a compact among states, which existed as political communities before the Constitution and could not simply be dissolved into a population count. The large states' case was that representation means representing people, and that counting Delaware's sixty thousand equally with Virginia's seven hundred thousand gave a citizen of Delaware twelve times the weight.

The vote that settled it was as close as it sounds. The compromise carried five states to four with one divided, and Madison, who had drafted the plan it defeated, regarded equal representation in the Senate as a serious defect to the end of his life. The Convention nearly broke up twice in those six weeks; several delegates went home and did not return.

Both arguments are still live. The compromise that resolved it is the reason the Senate today gives Wyoming and California two seats each, and the reason a presidential election can be decided by a handful of small states. The Convention did not solve the problem; it built both answers into the same building and let them argue forever.

Part 2 · Counting people who were owned

Once the House was to be apportioned by population, a second question followed immediately: who counts? Southern delegates wanted enslaved people counted in full for representation, which would have given their states many more seats. Northern delegates objected that people treated as property in law could not also be constituents.

The answer was the three-fifths rule: for both representation and direct taxation, a state's population would include all free persons plus three-fifths of “all other Persons.” It is worth being exact about what this did. It did not say an enslaved person was three-fifths of a human being, and it did not give them three-fifths of a vote — they had none. It gave their enslavers additional representation in Congress on account of people who could not vote and whose interests those representatives did not serve.

The number itself came from an earlier failure. Congress had proposed the same three-fifths ratio in 1783 as a way of apportioning tax burdens among the states under the Articles, where southern delegates had argued for counting enslaved people as little as possible because the question was who paid. In 1787 the question was who ruled, and the same delegates argued the opposite way about the same people. That reversal, five years apart, shows the ratio was never a judgement about human beings; it was whatever number served the interest of the moment.

The effect was large and lasting. Southern states held roughly a third more seats in the House than their free populations warranted, and because electoral votes follow House seats, the same advantage applied to presidential elections. Jefferson's victory in 1800 turned partly on it; critics at the time called him the Negro President for precisely that reason.

Part 3 · The word that never appears

Read the 1787 Constitution and you will not find the word slavery or slave anywhere in it. The three-fifths clause says “all other Persons.” The clause protecting the trade says “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit.” The fugitive clause says “Person held to Service or Labour.”

Madison recorded that delegates thought it wrong to admit in the text that there could be property in men. The circumlocution was deliberate, and it tells you they knew what they were doing. A document written to last was being drafted so that the institution could later be removed without the words having to be.

Two further bargains sit alongside the counting rule. Congress was forbidden to prohibit the importation of enslaved people before 1808 — twenty years' protection, demanded by South Carolina and Georgia as the price of their signatures. And the fugitive clause obliged free states to return people who escaped, which made every state complicit and became, through the Fugitive Slave Act of 1850, one of the sharpest causes of the crisis you will meet in chapter seven.

Part 4 · Who was left outside

The Constitution as written in 1787 says almost nothing about who may vote, leaving qualifications to the states — which in practice meant property-owning white men, as you calculated in chapter two. Women are not mentioned. Native nations appear twice, both times as something external: Congress may regulate commerce with them, and “Indians not taxed” are excluded from the population count altogether.

That exclusion from the count is worth pausing on. It places Native nations outside the political community entirely, neither represented nor counted, treated as foreign peoples living inside the borders claimed by the United States — a status that generated two centuries of litigation about sovereignty and remains unresolved.

The Convention did leave one door open, and it matters. The Constitution provided a method for its own amendment, so none of these bargains was declared permanent — unlike the clause protecting the slave trade until 1808 and the clause guaranteeing equal state suffrage in the Senate, both of which were written to be unamendable. Everything else could in principle be changed by the procedure of the last unit, and the Thirteenth, Fourteenth and Fifteenth Amendments eventually were exactly that: the three-fifths rule abolished by the people it had counted.

Set the whole thing against the Declaration eleven years earlier. The 1776 document asserted a universal principle; the 1787 document is an engineering drawing with the exclusions built into its measurements. Both were produced by overlapping groups of men. The distance between them is the subject of most of the rest of American history.

Part 1 · An objection that could not be answered

Anti-Federalists made the case in plain terms. Every state constitution had a declaration of rights; the English had Magna Carta and the Bill of Rights of 1689; and the colonists had just fought a war over rights they said were being violated. To hand a new national government the power to tax, raise armies and make supreme law without writing down what it could not do looked, to a great many people, like a bad trade.

Hamilton's answer in Federalist 84 has real logical force and still failed politically. The government, he argued, could exercise only enumerated powers, so there was no power to abridge the press and therefore no need to forbid it — and forbidding it would imply the power existed. Madison added a practical worry: a list of rights on paper would not stop a determined majority, and might lull people into thinking it would.

Massachusetts found the way through in 1788 by ratifying and simultaneously recommending amendments. Virginia and New York followed the same route, and so the Constitution was adopted on an understanding rather than a condition. Madison's answer to his own objection, once elected, was that a written right at least gives courts something to enforce and citizens something to point at.

Part 2 · What the ten protect

Madison introduced twelve amendments in 1789; ten were ratified by the states in 1791. The First protects religion, speech, press, assembly and petition — five freedoms in one sentence, all of them about the ability to criticise and organise. The Fourth requires warrants and probable cause for searches. The Fifth and Sixth govern criminal process: no self-incrimination, no deprivation of life, liberty or property without due process, a speedy public trial by jury, and counsel.

A pattern runs through them that is easy to miss. The great majority concern what happens when the government accuses you of something — how it may search, charge, try and punish. The framers' most vivid fear was not censorship in the abstract but the knock at the door, the general warrant, the trial without a jury, which were the concrete grievances of the 1760s and 1770s.

The Second and Third now read very differently than they did. The Third, forbidding the quartering of troops in houses in peacetime, has produced almost no litigation in two centuries and looks obscure — until you remember the Quartering Acts of the 1760s and 1770s, which made it one of the sharpest grievances in the Declaration. The Second, written when the states relied on militia rather than a standing army the framers feared, has become among the most contested, with the Supreme Court addressing its meaning directly only in 2008. The same text can sit quiet for two hundred years and then become the centre of an argument.

Two amendments do a different job. The Ninth says that listing some rights does not deny others retained by the people — Madison's direct answer to Hamilton's objection. The Tenth reserves to the states or the people whatever is not delegated, which is the federalism of the last unit written as a rule.

Part 3 · Whom the Bill of Rights binds

For its first seventy years the Bill of Rights restrained only the federal government. In Barron v. Baltimore in 1833 the Supreme Court held exactly that: a city had ruined a man's wharf, and he could not invoke the Fifth Amendment, because the amendments limited Congress and not the states. A state could establish a church, censor a newspaper or deny a jury, and the federal Bill of Rights had nothing to say.

That changed through the Fourteenth Amendment of 1868, which forbade any state to deprive a person of life, liberty or property without due process. Over the following century the Supreme Court used that clause to apply most of the Bill of Rights against the states one protection at a time, a process called incorporation, running well into the 1960s.

Incorporation happened case by case and unevenly, which is why the dates are worth knowing. Free speech was applied to the states in 1925, the establishment clause in 1947, the right to counsel in criminal cases in 1963, and the Second Amendment only in 2010. Each arrived because somebody lost in a state court and appealed, which means the scope of American rights has been set less by the framers than by the particular people who kept pushing after they lost.

So the rights you have against your own state government mostly arrive by a route opened after the Civil War, not in 1791. That is a genuinely surprising fact about a document everyone treats as foundational, and it shows that constitutional text acquires meaning through the fights that follow it.

Part 4 · Changing it is meant to be hard

An amendment needs two-thirds of both chambers of Congress and then ratification by three-quarters of the states — thirty-eight of fifty today. There is a second route, never used, in which two-thirds of state legislatures call a convention.

The record shows how severe that is. Thousands of amendments have been proposed since 1789 and twenty-seven have passed, and one of those repealed another. The first ten came as a batch, so in more than two centuries of ordinary politics the country has amended its constitution seventeen times.

Not every proposal that clears Congress arrives. The Equal Rights Amendment passed both chambers in 1972 and fell short of thirty-eight states within its deadline, and an amendment to abolish child labour, proposed in 1924, has never been ratified and has no deadline at all. Those two show the same machinery from the other side: a proposal can command two-thirds of a Congress and still be stopped by thirteen state legislatures.

The oddest case is the most recent. The second of Madison's original twelve, forbidding a congressional pay rise from taking effect until an election has intervened, was simply never ratified — until a university student noticed in the 1980s that it carried no deadline and campaigned to revive it. It became the Twenty-Seventh Amendment in 1992, 202 years after it was proposed.

Part 1 · Two sides, badly named

The labels mislead and it is worth saying so at the start. A federal system is one in which power is divided between a centre and its parts, so the people most committed to that division were the Anti-Federalists. Their opponents, who wanted a far stronger centre, took the name Federalists first and left their critics defined by a negative. It was effective and it was not accurate.

The Anti-Federalists were not cranks or losers in the argument's own terms. They included George Mason, who had written Virginia's Declaration of Rights and refused to sign the Constitution; Patrick Henry, the most famous orator of the Revolution; and in New York Clinton and Melancton Smith, an able debater who led the opposition at Poughkeepsie.

They were also, in one important respect, better prophets than their opponents. Brutus — probably the New York judge Robert Yates, who had walked out of the Philadelphia convention — predicted in 1788 that the Supreme Court would become the final judge of the Constitution's meaning, answerable to nobody, and that its reading would expand federal power over time. Marbury in 1803 and two centuries of expansion since suggest he read the document more accurately than the men defending it.

Their case rested on a respectable principle. Montesquieu, whom everyone had read, held that a republic could only survive in a small territory, because self-government depends on citizens sharing interests and knowing their representatives. A republic stretching from Georgia to New Hampshire would, on that reasoning, have to become either a tyranny or a collection of strangers.

Part 2 · What each side was afraid of

The Anti-Federalist objections were specific. There was no bill of rights. A standing army in peacetime was permitted, which every student of the Roman republic knew was how republics died. The necessary and proper clause and the supremacy clause seemed open-ended enough to swallow anything. The Senate, with six-year terms and members chosen by legislatures, looked like an aristocracy in waiting. And federal courts would sit far from the people whose disputes they settled.

The Federalist answer came mainly through the eighty-five essays published in New York newspapers between October 1787 and August 1788 under the name Publius — fifty-one by Hamilton, twenty-nine by Madison, five by Jay. They were journalism aimed at this fight, not philosophy written for posterity, which is why they are so concrete.

The essays were a newspaper campaign and were treated as one. They appeared two or three a week in the New York press, were reprinted in other states, and were answered in the same columns by Brutus and Cato within days. Hamilton organised the whole effort and wrote at a pace that suggests the deadline mattered more than polish. That they are now read as founding philosophy is a later honour; in 1788 they were argument aimed at delegates who had not yet voted.

Madison's Federalist 10 turned the Montesquieu argument upside down. Faction, he argued, is unavoidable because people differ in property and opinion, and a small republic is the most vulnerable to it, because one faction can easily become a majority and oppress the rest. Enlarge the republic and you multiply the factions, so no single one can dominate and any majority must be assembled from many interests. Size, on this argument, is the protection rather than the danger.

Part 3 · Poughkeepsie

New York's convention opened in June 1788 with the Anti-Federalists holding roughly two to one. Hamilton's tactic was delay: argue clause by clause, keep the convention sitting, and wait for news from elsewhere. It worked because the news arrived.

New Hampshire ratified on 21 June, which made nine and brought the Constitution into effect whatever New York did. Virginia ratified on 25 June, removing the hope of a southern bloc standing out together. The question in Poughkeepsie changed from whether the Constitution was a good one to whether New York wished to be a foreign country between New England and the rest.

There was also a threat close to home. New York City was strongly Federalist, and it was openly suggested that the city and the southern counties might separate and join the union on their own, taking the port and the customs revenue with them. Melancton Smith, who had argued ably against ratification for weeks, finally moved to ratify with recommended amendments. The vote was 30 to 27.

Part 4 · The losers wrote part of the result

Massachusetts had found the formula that made ratification possible: approve the Constitution and simultaneously recommend amendments. Several states followed, and the recommendations ran to more than two hundred proposals. Madison sifted them into the twelve he introduced in 1789, ten of which became the Bill of Rights in 1791.

New York attached a long list of its own. Its instrument of ratification ran to pages of proposed amendments and a declaration of the rights its delegates believed were retained, and it called for a second general convention to consider them — a call Virginia had made too and which came uncomfortably close to succeeding. Madison introduced his amendments in Congress partly to head that off, judging that a second convention might reopen everything.

So the Anti-Federalists lost the vote and won the most quoted part of the document. The First Amendment exists because people who opposed the Constitution refused to accept it without written limits, and the Federalists who had argued such limits were unnecessary wrote them to keep their promise.

Smith's change of position deserves respect rather than suspicion. He had led the opposition for six weeks and had argued, correctly, that the document gave too much away without securing rights. Once nine states had ratified he judged that keeping New York out would damage his state without improving the Constitution, and that recommending amendments from inside was the better route to the protections he wanted. The Bill of Rights two years later suggests he was right.

The last two states held out and show how real the pressure was. North Carolina refused in 1788 and ratified only in November 1789, after the amendments had been sent to the states. Rhode Island, which had never sent delegates to Philadelphia at all, held out until May 1790 and ratified thirty-four to thirty-two, after Congress began discussing treating it as a foreign nation for trade purposes.