Our Constitution's Rocky Start

With the election season is full swing, USF political scientist examines some disagreements among the Founding Fathers.


By Barbara Melendez

USF News


TAMPA, Fla. (Oct. 4, 2012) – Mike Gibbons goes through a range of emotions when he hears people – typically politicians, legislators, pundits and the occasional Supreme Court justice – invoke the Constitution or throw around the term “original intent.” Election season only makes things worse.


Sometimes the USF Government and International Affairs professor smiles – or even laughs. Other times he groans. 


“Few people take the time to find out what the founders were thinking even though we have plenty of material – letters, books, speeches and the like – that tell us,” Gibbons said. “People tend to pick the interpretations that suit their own views.”


For example, those critical of the federal government often say the framers of the Constitution intended to protect state sovereignty.


Nothing could be further from the truth.


The delegates to the Constitutional Convention recognized that when push came to shove, sovereignty could rest with only one authority. They knew that history had shown that otherwise, federations were doomed to dissolve. The delegates were largely of one mind that citizens couldn’t obey two masters. Hence, the Constitution included the Supremacy Clause, Article VI of the Constitution. It states that in the event of a conflict between state laws or constitutions and the constitutionally authorized acts of the federal government, federal laws shall prevail. 


According to Gibbons, this outraged the opponents of the Constitution, the Antifederalists such as Robert Yates of New York and Patrick Henry of Virginia, who saw in it the workings of a consolidated national government that they opposed. Ironically, among those most in favor of a strong national government were Southern delegates who wanted the national government to protect slavery.


That’s just one example. There are many more.


Gibbons is intimately acquainted with and well-versed on the inner workings of the Constitutional Convention and all those who contributed to the process of founding the United States of America. His area of specialization is political theory and America political thought. He co-edited The Federalists, the Antifederalists and the American Political Tradition, with Wilson Carey McWilliams; he is the editor-in-chief of the forthcoming Blackwell’s Encyclopedia of Political Thought (8 Volumes); and author of the book, Pragmatism and A Mirror of Modernity: Rorty, Politics, and Truth, due in 2013.


Gibbons regales his classes with descriptions of the colorful cast of characters who signed their names to that august document. He brings to life the up-front scenarios, the behind-the-scenes shenanigans and the details that remind his students that the Founding Fathers were simply people. As contentious as political conversations are nowadays, they’re nothing compared to what went on with and between the Constitution’s original framers, Gibbons says.


“The story behind the way the Constitution and the Bill of Rights came into being should give everyone pause before declaring what the Founding Fathers did and did not mean. That document didn’t come etched on stone tablets, never to be reconsidered.”


While the Constitution is certainly a remarkable document and something to be proud of, treating it as a sacred document, divinely inspired, is out of place, in Gibbons’ view. Its “loose language, such as the necessary and proper clause, also known as the ‘elastic clause’ were intentional and, according to Madison in the Federalist Papers, unavoidable. Madison claimed that not even God could make the human language perfectly clear,” he said.


“These men were forward-thinking enough to recognize that adjustments would be necessary. Most might not have expected the adjustments to be dramatic, but given how dramatically the world has changed since their time, I like to think they understood on some level that attitudes would change with time.” He added, “We expect life to be quite different – like 100 years from now, but like the Founders, we take certain ideas and practices for granted and worthy of protection, no matter what.”


Accordingly, Gibbons says we shouldn’t be so quick to think every clause or section has only a single, original, unchanging meaning passed down to us from perfect human beings. An example is the clause against cruel and unusual punishment.


“Some states had flogging laws, or allowed for amputation as punishment. The last flogging in the U. S. Navy happened in the 1870’s. And there were public hangings. Society evolves and so many practices that look barbaric to us today were condoned back then. So when you bring up ‘original intent’ you have to be careful.”


Voting is another example. At the time of the American Revolution, more than two-thirds of the people residing in the colonies were not eligible to vote.


“We know that owning land was a requirement to vote in almost all states,” Gibbons said. “But in fact land ownership was so common that not as many white males were excluded as is sometimes thought. However, in many states, religious qualifications would have been a more likely reason to disqualify someone from voting. If you weren’t a Congregationalist (Puritan), you couldn’t vote in Connecticut in 1788. And we all know it took almost 80 years for African-American males to legally get the right to vote and in practice another 100 years. It took women another 132 years for the Constitution to protect women’s right to vote.”


That final detail comes with a footnote. “Interestingly, in about five states prior to the election of 1788, women could vote, if their husbands qualified, but that right was denied them in all states by 1800.”

Religious freedom was not quite the idea taken for granted today. For example, the context in which religious freedom was being discussed back in 1789 might interest those who have opinions on the subject.


“If you were the wrong kind of Christian in most of the original states, you couldn’t vote and you couldn’t hold political office,” Gibbons said. “Catholics were thought to be the embodiment of evil in some states, the Anti-Christ, the Whore of Babylon, in the words of their enemies. Similarly, in the early Massachusetts Bay Colony, Quakers were branded with a ‘Q’ for preaching in public and hung if found preaching a second time. The Framers of the Constitution recognized that injecting religion into politics could have these effects. That’s why they left ‘God’ out of the Constitution. When Hamilton was asked why ‘God’ didn’t appear in the Constitution, he replied somewhat sarcastically, ‘We must have forgotten.’ The framers left a lot open to interpretation, on purpose, trusting the future to sort some matters out.”


They were sadly mistaken in at least one important area though, according to Gibbons – slavery.


“Some of the most important contributors to the Constitution were opposed to slavery. Most notably George Washington, John Adams, John Jay and ultimately Benjamin Franklin were all on record as favoring abolition. But they truly believed the institution was dying and were happy to see it go. They were certain there was no way it could continue. Consequently, they deferred to those of their peers from the South whose wealth was inextricably tied to slavery when it came time to address the issue in the Constitution.


“James Madison, who has been called the Father of the Constitution for the role he played at the Constitutional Convention, called slavery the worst kind of majority tyranny in the history of mankind, a tyranny based on the color of a man’s skin. But he squashed efforts to address the issue fearing it would split the new Republic,” Gibbons said. “He thought it would die of its own accord.”


Then came Eli Whitney’s cotton gin, and cotton became king, “something they never could have imagined, and gave slavery a new, profitable life. Technology still has that power to transform society in ways we can’t anticipate.”


Other issues are still being sorted out 200 years later. The status of the Second Amendment (the right to bear arms), issues about interstate commerce, and recent calls to do away with the Federal Reserve, all have parallels in the period during the ratification of the Constitution.


The framers were far from being of one mind. There were plenty of disagreements among the people whose names are dragged into evidence of so-called original intent. Many of those who were opposed to the new Constitution, labeled Antifederalists the likes of which included Patrick Henry, believed that there should be 13 separate republics, loosely tied together as they were under the Articles of Confederation, the document that preceded the Constitution.  


Others thought that a splitting into three republics was best. Many feared that if the country were to have a strong national government it would become an empire, a superpower, like England, France or Spain. Under such conditions, representative democracy would disappear at home, they felt. History had shown them that empires don’t tolerate domestic dissent.


“They wanted no part of such a configuration,” Gibbons said. “And many of the Antifederalists thought that the very existence of a strong national government, reflected in the ‘supremacy clause’ and the ‘necessary and proper clause,’ was by definition of tyranny.” 


There were even heated disagreements among those who endorsed the new Constitution. For example, Hamilton and Madison, collaborators over the Federalist Papers, became bitter enemies over establishing a national bank. 


“You would expect the authors of the Federalist Papers to be in full agreement, but that was not the case,” Gibbons said.


Each of the states had its own bank and many didn’t want to change that. But having states with different currencies caused problems and it became clear that interstate commerce would suffer without a common currency. Gibbons points out, “Hamilton argued that if a common currency was needed, a national bank was needed to regulate it. Madison disagreed. We know who prevailed.”


The many conflicting perspectives are reflected in the existence of the Bill of Rights.


“The only reason we have a Bill of Rights is because there was a significant number of dissenters who were opposed to the Constitution and wouldn’t ratify it without those provisions.”


Patrick Henry saw the Constitution as a clever way to circumvent the states, something he was quite opposed to. “And he was right in a sense,” Gibbons said. “Hamilton, who opposed the Bill of Rights, considered the states ‘petty little fiefdoms’ and would have been just as happy if they didn’t hold onto any power. He wanted one nation without interior borders. Their disagreement – between states’ rights and a unified government is still going on.”


The conditions under which the Constitution came together were not pretty either. 


At the Philadelphia Ratifying convention, just to get a quorum, the majority who favored the new Constitution resorted to tying the dissenting delegates to their chairs. In fact, some delegates to the national convention left almost immediately. They thought that the very idea of writing a new Constitution was going beyond the authority they were granted. Many of those who left eventually argued that the Constitution itself was an illegal document.  In the end there were still holdouts and dissenters. Nonetheless, the majority ruled.


And nothing happened with the speed we expect today. It took more than a year to ratify the Constitution with Rhode Island being the last state to sign on in 1790.


Once agreed to – over all kinds of objections, incorporating compromises and stipulations – everyone was clear at least that the Constitution was subject to change. “And the people didn’t come to blows until the War Between the States, although the War of 1812, the bicentennial of which we are oddly, largely ignoring, almost resulted in the secession of the New England states.”


Nearly 100 years after the nation was formed, Abraham Lincoln argued that once the Union was saved, slave emancipation and Reconstruction constituted a “second founding” establishing a new nation.


“He boldly stated that the Declaration of Independence had it right and took issue with what the Constitution left undone,” said Gibbons.


The role of the President has also changed over time, Gibbons adds. “When George Washington held that position, he never initiated legislation. He saw his role as one of enforcing the laws of the land. He didn’t like the idea of actually spending time in the company of members of Congress. He considered it beneath the office of the President when asked to appear before Congress.”


Is it possible to say for certain how the Founding Fathers would react to the world we face today?  How they would look upon the issues of today? 


Gibbons answers, “It’s always risky trying to extrapolate from one historical period to another. Moreover, people change their minds, as Thomas Jefferson did for the worse about slavery and apparently as John Roberts has done recently about the Affordable Health Care Act. So we’ll never know for sure and besides, I believe their original intent was to make room for changes that would continue to preserve our basic freedoms. Voting and encouraging political dissent were precious to them as they should be to all of us.”


Barbara Melendez can be reached at 813-974-4563.