pensable, but they were uncertain as to whether such an important authority should be vested in a single person or in a directorate. They also had no little difficulty in agreeing on the method by which the chief magistrate was to be elected. After much discussion they decided that the executive power should be given to one man the President. To meet the objections of those who were afraid of intrusting too much political control to the mass of the people, it was decided that the President should be selected indirectly by electors chosen as the legislatures of the several states might determine. 2. No less grave defects were inherent in the Congress created by the Articles of Confederation. Three, in particular, engaged the attention of the convention: the equality of the several states, large and small, in voting power; the instability of a single chamber; and the absence of direct representation of the people in the Congress the delegates being appointed by their respective state legislatures and thus dependent upon the states as corporate entities rather than upon the people thereof. The convention accordingly decided upon a bicameral legislature: a Senate affording equal representation to all states and elected by the legislatures, and a House composed of representatives apportioned among the states on a basis of population and chosen by popular vote. Moreover, another significant fact must not be overlooked, namely, that the members of the new Congress were to be paid from the national treasury and thus relieved from all dependence upon state revenues. 3. The crowning defect of the Articles, according to Hamilton, was the want of a central judiciary. The old Congress had no authority to organize courts of general jurisdiction, although it could act as a tribunal of "last resort on appeal in all disputes and differences arising between two or more states concerning boundary, jurisdiction, or any other cause whatever." 2 It therefore had no way of enforcing federal laws by judicial process, and as Hamilton said: "Laws are a dead letter without courts to expound and define their true meaning and operation."4 Moreover, Hamilton, fearing the aggression of the legislature, believed that the court should have the power of declaring laws 1 C. C. Thach, The Creation of the Presidency, 1775-1789. Except in maritime and admiralty matters. unconstitutional. Accordingly a Supreme Court and inferior courts, to be erected by Congress, were given jurisdiction over all cases arising under the Constitution, federal laws, and treaties a jurisdiction by later congressional enactment and judicial decision interpreted to include the power of declaring state and federal laws unconstitutional. 4. The financial and commercial objections to the Articles of Confederation were met by provisions conferring important enumerated powers upon Congress. The necessity of depending upon the state legislatures for federal funds was entirely eliminated by the clause authorizing Congress to raise revenues by taxes, duties, and excises bearing immediately upon the people as individuals. The continuation of the commercial warfare among the states was prevented by the clause empowering Congress to regulate commerce among them and with foreign nations, as well as with the Indians. The National Government was also authorized to establish uniform bankruptcy laws and thus exercise at will an effective check upon the shrewdly devised state legislation through which debtors sometimes sought to escape from their obligations.1 No less important for financial and commercial purposes were the restrictions laid upon the powers of the states. They were forbidden to emit bills of credit, make anything but gold and silver coin tender in payment of debts, pass ex post facto laws, lay duties on imports or exports (except with the consent of Congress for specific purposes), lay tonnage duties, or pass any law impairing the obligation of contract. 5. Special effectiveness was given to the new powers conferred upon the National Government by virtue of the fact that it could deal with individuals instead of thirteen distinct and separate states. Hence it was no longer possible for states to violate and disregard treaties made by the Federal Government, or to look upon federal laws as mere recommendations to be obeyed if desirable or neglected altogether. The Ratification of the Constitution It is evident from an examination of these departures from the Articles of Confederation that a revolution in the political system was contemplated by the framers of the Constitution. 1 See Readings, pp. 236 ff. They were doubtless unaware of all the national implications contained in the instrument which they drafted, but they knew very well that the state legislatures, which had been so negligent in paying their quotas under the Articles and which had been so jealous of their rights, would probably stick at ratifying the new plan. Accordingly they cast aside that clause in the Articles requiring amendments to be ratified by the legislatures of all the states; and proposed that the new Constitution should be ratified by conventions in the several states composed of delegates chosen by the voters. They furthermore declared and this is a fundamental matter that when the conventions of nine states had ratified the Constitution the new government should go into effect so far as those states were concerned. Of course, the convention did not resort to the revolutionary policy of transmitting the Constitution directly to the conventions of the several states. It merely laid the finished instrument before the confederate Congress with the suggestion that it should be submitted to "a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and each convention assenting thereto and ratifying the same should give notice thereof to the United States in Congress assembled." The convention went on to suggest that when nine states had ratified the Constitution, the confederate Congress should extinguish itself by making provision for the elections necessary to put the new government into effect.2 "1 "What they [the convention] actually did, stripped of all fiction and verbiage," says Professor Burgess, "was to assume constituent powers, ordain a Constitution of government and of liberty, and demand the plébiscite thereon, over the heads of all existing legally organized powers. Had Julius or Napoleon committed these acts, they would have been pronounced coups d'état. Looked at from the side of the people exercising the plébiscite, we term the movement revolution. . . . Of course the mass of the people were not at all able to analyze the real character of this procedure. It is probable that many of the members of the convention itself did not fully comprehend just what they were doing." 3 1 For documents illustrating the process of ratification, Readings, p. 54. 2 Ibid., p. 53. * Burgess, Political Science and Constitutional Law, Vol. I, p. 105. After the new Constitution was published and transmitted to the states, there began a determined fight over its ratification. A veritable flood of pamphlet literature descended upon the country. A collection of newspaper articles by Hamilton, Madison, and Jay, brought together later under the title of The Federalist, was scattered broadcast throughout the land. The conflict over the election of delegates to the state ratifying conventions was bitter in all the important states and marked by a sharp division of the voters. Broadly speaking, the support for the new Constitution came from the seaboard regions the centers of commerce, industry, and finance while the opposition came from the farmers of the interior. Manufacturers, creditors, bond-holders, and men of substance were in favor of the Constitution; the debt-burdened farmers, friends of paper money and weak government, were against it. Bitter as the contest was, only about one fourth of the adult white males in the country voted in the elections at which the delegates were chosen; three fourths of them were either disfranchised by the property qualifications on the suffrage or by their own indifference. In New York the popular vote was overwhelming against the ratification of the Constitution; in Virginia and Massachusetts it was very close. Nothing but the most heroic efforts on the part of the Federalists saved the day for the Constitution.1 Before the lapse of a year the champions of the national system found themselves victorious, for on June 21, 1788, the ninth state, New Hampshire, ratified the Constitution, and accordingly the new government might go into effect as between the agreeing states. Within a few weeks, the nationalist party in Virginia and New York succeeded in winning these two states. In spite of the fact that North Carolina and Rhode Island had not yet ratified the Constitution,2 Congress determined to put the instrument in force in accordance with the recommendations of the convention. Elections for the new government were held; the date March 4, 1789, was fixed for the formal establishment of the new system; Congress secured a quorum on April 6; and on April 30, Washington was inaugurated at the Federal Hall in Wall Street, New York. 1 Beard, An Economic Interpretation of the Constitution. 2 For the peculiar case of Rhode Island, see F. G. Bates, Rhode Island and the Formation of the Union. CHAPTER V THE NATIONAL CONSTITUTION AS A CHANGING ORGANISM If we use the term "Constitution" in the narrow sense as including only the provisions of the written instrument itself, the history of its development is brief; but such a restriction of the term would be sheer formalism, and a history based upon such an interpretation would be misleading. For constitutional law, as Professor Dicey points out, includes all the fundamental rules which directly or indirectly affect the distribution and exercise of sovereign power; it includes among other things the laws which define the suffrage, regulate the prerogatives of the chief magistrate, prescribe the form of the legislature, and determine the structure and functions of the hierarchy of officials. A comparison, therefore, of the present body of law and custom relative to such matters with that obtaining in the United States on the morning when Washington took the oath of office reveals most astonishing changes. Only nineteen new clauses, it is true, have been added by way of amendment to the written document, but Congress has filled up the bare outline by elaborate statutes; party operations have altered fundamentally the spirit and working of the machinery; official practice has set up new standards from time to time; and the Supreme Court, by generous canons of interpretation, has expanded, in ways undreamed of by the Fathers, the letter of the law. In fact, custom forms as large an element of our Constitution as it does in the case of the English constitution. A correct appreciation of the evolutionary character of the national system is, therefore, necessary to a true understanding of the genius of the American political institutions. That is not all. A knowledge of the ways in which the letter of the Constitution has been interpreted from time to time to meet pressing exigencies not foreseen by the framers is an essential part of the equipment of the citizen as well as the statesman. Such a knowledge reveals the normal course of dealing with the |