September 27, 2019

Post

Dr Nicholas Cole, Senior Research Fellow at Pembroke College, University of Oxford and Director of the Quill Project.

When Alexander Hamilton remarked to his countrymen in Federalist I that it was the special fortune of the people of America to form a government through “reflection and choice” he was not only referring to the work of the 1787 Constitutional Convention, but also to the innovations that had occurred at State level since the beginning of the struggle for Independence.  Members of the Convention had not only been state legislators since the Revolution, but had helped to draft state constitutions.  It was at state level that the idea of written constitutions with a clear separation of powers, drafted in constitutional conventions and ratified by the people, had come to be accepted as a correct way to approach the creation of fundamental law for a republic.  As the Convention considered a variety of different arrangements and provisions for the new national government they were not only considering theoretical possibilities, but able to reflect on the experience of different states, and the experience of the members of the Convention in creating new arrangements for government.

It is easy to forget, too, that the new government of the United States was not (in spite of the fears of many anti-Federalists) intended to replace state governments or reduce them to irrelevance, but rather to work alongside them, and that it depended upon them for its operation.  There is ample evidence in the records of the Convention itself that, far from expecting the state governments to wither away, the members of the Convention were well aware that the new national government would rest upon the framework provided by state governments.  That, indeed, was the Convention’s original reason for dismissing so quickly the idea of writing a Bill of Rights as part of the 1787 text: the rights of citizens were already protected by the Bills of Rights that had been enacted by state governments.  Care was taken by the Convention to consider just what burdens could be placed on the officials and citizens of the individual states by the Federal government, and these debates did not end with the conclusion of the Convention or with Ratification, but instead continued into the first Congress, with attempts during the debates that drafted the Federal Bill of Rights (now recognized as a necessity) to revisit the choices made by the Convention and to adjust the relative powers of the states and national government to raise taxes and manage the economy.

To be sure, there were a range of opinions expressed at the Convention as to how much control the Federal Government should have over different aspects of what had been until this moment exclusively state affairs. Yet the extremes of opinion on such matters did not win the day, and on all of the most significant questions compromise positions were reached that secured the continuing importance of state legislatures, state courts, and state officials.  Moreover, the Convention frequently considered how state actors were likely to react to and interact with the proposed Federal Government, often reflecting that the citizens and government of the various states might behave differently.  Indeed, in world where states were sharply divided by their size, population, settlement patterns, histories, and the question of slavery, it could hardly have been otherwise.

By itself, even with the first ten Amendments to the Constitution, the 1787 text never provided for a complete system of government, even within the standards of the decade.  It did not provide the protections for individual rights that were more explicitly protected in many state constitutions, nor did it proscribe—except with the vague provision that state government must be “republican”—for any specific constitutional provisions in the various states.  Instead, the 1787 Convention produced a text that was always intended to be read and to operate alongside state constitutions and at the same time anticipated variety among them.  To the extent that the 1787 Constitution limited the concerns of the Federal government and rejected Madison’s proposals for a general Federal oversight of state laws, it created a system that continued to involve state governments in national politics and without which the national government itself would always be incomplete.

Get the latest from the ARTICLE I INITIATIVE and stay in the know.