Framing the U.S. Constitution
The Philadelphia Convention represented a great opportunity for the American ruling class across the continent to re-encounter itself. Among the 55 delegates that first gathered on May 25, 1787, all of them were white males, more than half were lawyers, another quarter were owners of large commercial farms or plantations, and only two of them were small farmers from the class that made up 85 per cent of the population (Collier and Collier, 1986, p.
76). As Charles Beard highlighted (1964, p. 30), there was more identity interest among Langdon of Portsmouth, Gerry of Boston, Dayton of New Jersey, Robert Morris of Philadelphia, McHenry of Baltimore, Washington on the Potomac, Williamson of North Carolina, the Pinckneys of Charleston, and Pierce of Savannah than between these several men and their debt-burdened neighbours at the back door. Beard suggested that the decisions adopted by the framers at Philadelphia were motivated by the satisfaction of their direct personal interest. This thesis, however, has been contested by some historians (Brown, 1956; McDonald, 1958) arguing that it has not been convincingly demonstrated that only economic benefit determined the vote of delegates. The question of the scarce protection that bondholders (among whom one could count some of the delegates in the Convention) would enjoy under the constitutional provisions is an example that shows that not everything was defined by the zeal for personal enrichment. Notwithstanding this objection, one cannot affirm that the behaviour of the representatives who met at Philadelphia was not primarily conducted by the defence of their class interest as a whole.16 The military organization provided in order to prevent future revolts, for instance, gives a good account on the influence of the elite's interest in outlining the constitutional institutions. The Southern planter or the creditor in Massachusetts, would feel more secure against, respectively, slave rebellions or debtors' riots since they would know that under the new constitution the governor of his State might call in the strong arm of the federal administration in case of a domestic disturbance. In this vein, it might be stated that the main issue that instigated the strength of central institutions reflected in the Federal Constitution was the threat to the “domestic tranquility” (as was included in the constitutional preamble), and this tranquillity had been put in danger by events such as the Shays' Rebellion.As I have explained, the Shays' Rebellion had been stifled due to the initiative of the Massachusetts governor to recruit, with private funding, an army against the mob, but the circles that supported the call for the Federal Convention (and
most of the delegates gathered at Philadelphia) understood that such a situation could not take place again, and that it was peremptory for the authorities to provide themselves with a stable military framework to crush any other attempt that might demolish the existing order. In short, the Philadelphia constituent process was essentially determined by the need to consolidate monopolistic exercise of physical violence in the hands of the government. The American case confirms that constitutionalism is basically related to the organization of force to defend the new order created and, particularly, to the shaping of an instrument of State violence able to repress popular violence (Elster, 2012, p. 37). Several provisions of the 1787 constitutional draft are motivated by the aforementioned strand: the goal of cracking down future Shays-like upheaval may be perceived in the authorization in Article I.8 placed in the Congress “to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions,” in Article IV.4 according to which “the United States shall..
protect [every State] against invasion, and on application of the legislature, or the executive (when the legislature cannot be convened) against domestic violence,” or in the affirmation in Article 1.9 that ”The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (Elster, 2012, p. 20). In a draft in which a bill of rights was still not incorporated even the rights there recognized, such as habeas corpus, were regulated under the possibility of suspending them in case of tumult. Although Article I.8 Clause 16 is reserved to the States, the “appointment of the officers, and the authority of training the militia” powers are developed “according to the discipline prescribed by Congress.”Generally, the whole institutional design of the Federal Constitution was conceived to put up barriers against popular participation, whether that was exercised through institutional means or through direct action. Virginia’s governor and a member of the State’s delegation at the Convention, Edmund Randolph, admitted that:
Our chief danger arises from the democratic parts of our constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallows up the other branches.
(quoted by Bouton, 2007, p. 171)
In order to prevent such supposed popular abuses Randolph, as most of the other delegates, proposed a gamut of checks that would shape the famous countermajoritarian institutions within the American constitutional system: the Founders canvassed an almost monarchical presidency with legislative veto power [which by 1787 was only acceptable through the immense prestige of the figure of George Washington who also contributed to the legitimacy of the Philadelphia Convention by chairing it (Ackerman, 2019, p. 365; Elster, 2012, p. 19)] and vested the Senate [which in the first stance was removed from direct popular control (Middlekauff, 2007, p.
673)] with decisive attributes including theViolence and constituent power in America 117 appointment of the federal judiciary that later would develop the constitutional review of legislation at federal level.
From the conception of the constitution as a decision on the allocation of power that I have described, the main expression of the move experienced in Philadelphia in 1787 was the configuration of a strong central power at the service of the American upper classes. There were, however, some other controversial issues related to the decision on the framework of domination that found a solution in the constitutional draft, basically (1) the fear of the small States of a Union dominated by the larger ones and (2) the already mentioned Northern and Southern disputes concerning the question of slavery (Brant, 1950, pp. 55-70; Tushnet, 2009, p. 12).
On the first question, the solution was chiefly found through the equal representation of the States in the Senate (Collier and Collier, 1986, p. 114; Middlekauff, 2007, p. 659). That the equal representation of the States in the Senate was central in designing the U.S. constitutional architecture was revealed by the particular amendment procedure conceived to change such a point. Leaving out the particular path to amend the constitution by calling a Constitutional Convention on the application to the Congress of the legislatures of two-thirds of the States (on this procedure, see Dellinger, 1979), the equal representation of the States in the Senate created an exception to the general formal amendment rule in the constitution as established in Article V of the U.S. Constitution.
Whereas a formal amendment ordinarily requires Congress and the States, respectively, to propose a formal amendment by two-thirds vote and to ratify it by three-quarters supermajority vote, a formal amendment diminishing a State's representation in the Senate requires in addition, as provided by Article V of the U.S. Constitution, that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Since it is hardly conceivable that any State would consent to a change that resulted in the direct or relative diminution of its power in American federalism it has been argued that the so-called Equal Suffrage Clause concerning the States' representation in the Senate may be considered an unamendable rule (see Albert, 2019, p.
160). Furthermore, it has been assumed that a change concerning any State's deprivation of the equal suffrage in the Senate in fact requires the unanimous consent of all States (and not only the ratification by a three-quarters supermajority plus the consent of the affected State). The reason becomes clear if we consider that if any State sees its representation in the Senate reduced, all other States would see their own Senate representation altered in relation to the State that has consented in its deprivation of equal suffrage (see Albert, 2019, p. 160; Levinson, 1996, p. 122; Levinson, 2001, p. 271 and p. 284). In sum, the Equal Suffrage Clause in the Senate and its virtual unamendability might be perceived as the legal translation of one of the main pillars concerning the decision on the allocation of power that the American framers adopted in the Convention.Small States were also satisfied by the design of the House of Representatives' composition which initially envisaged a formula of one representative for every 40,000 inhabitants (Middlekauff, 2007, p. 659) but the resulting reduced
number of the lower house representatives deserved both the criticisms of the most populated States' delegates at the Convention and, afterwards, of the AntiFederalists by accusing the federal legislature of being an instrument conceived to entrench “an aristocracy” of rulers. Before the closing of the Convention even Washington himself, as President of the body, accepted in extremis an amendment to strike out the proportion of 40,000 to elect a representative in the House and insert instead a 30,000 clause (Amar, 1998, pp. 12-13). But when the draft reached the Conventions for ratification, Federalists had to counteract the AntiFederalists' accusations regarding the “aristocratic character” of the Congress by offering an amendment to the Constitution. Said amendment, the first amendment to the Constitution among the 12 proposed in the First Congress, was never approved given precisely the opposition of small States (Amar, 1998, p.
17).Besides the special amendment procedure above mentioned concerning the Equal Suffrage Clause in the Senate, it might be observed as well that the ordinary amendment process to the Constitution, requiring at least the consent of three- quarters of the States to be approved, favoured likewise the small States, given that any structural change needed the support of some of them.
Small States' interests were also covered with the federation blueprint towards western lands. Some small north-eastern States would become bigger if a strong central government would safeguard their expansion to the west at the expense of the Indian territories. Connecticut, Pennsylvania, and Maryland contained many land speculators holding titles to territories in the West based on Indian deeds which might only be enforced through the performance of federal forces (Brant, 1950, pp. 62-65). After all, common interests among both large and small States were stronger than their differences, and that may explain why it was possible to reach an agreement, although not without strains. Large and small States supported the regulation of commerce; both feared upheavals which a national government might forestall or speedily suppress; both had a stake in solid public finance and the protection of creditors; both saw that a national government might stimulate the economy; and both saw the need for protection of the republic against external enemies (Middlekauff, 2007, pp. 647-648).
As we have seen, the constituent decision on the issue of slavery meant that the federal government would be barred from prohibiting the inter-State trade of slaves for two decades; that northern States would have the obligation to return slaves and that the apportionment of seats in the House would take slavery into account. The delegates at Philadelphia reached the so-called three-fifths compromise which was revealed as determinant for the success of the constituent Convention (Fehrenbacher, 2001, p. 44; Lynd, 1966) since it contained the differences between the Southern States claiming for the preservation of slavery and the reluctance of the Northern States to maintain it. Its effect was to give the Southern States a third more seats in Congress and a third more electoral votes than if slaves had been ignored, but fewer than if slaves and free people had been counted equally.
From the point of view of the procedural perspective, it should be pointed out that the Convention was conducted in secrecy by a small group, and the public was completely excluded, even as observers, from the discussion and deliberation of the constitutional decisions and regulations (Ginsburg, Blount, and Elkins, 2008, pp. 361-362; Rakove, 1997, p. 13). One reason for adopting the secrecy rule was related to the delegates’ consciousness of the fact that if it began to come out that the Convention was considering this or that course of action, there would be a public uproar, which might set the country against the whole proceedings (Collier and Collier, 1986, p. 83). Most of the delegates (if not all of them, since the secrecy rule was not contested) suspected that they were on the verge of doing something against the opinion of the majority.
As Robert Dahl remarked, several crucial votes in June and July 1787 were taken with only 11 State delegations. In addition, votes were counted by States although members of State delegations were occasionally divided, being unable, because of their division, to cast the vote (Dahl, 2002, p. 2). The ratification process within the elected Conventions of each State would not minimize the fact that the whole constitutional architecture had been already established by a minority and that the public represented by the States’ Conventions, despite some attempts, had no right to amend the constitutional product.