The Constitution in Formation.

Briefly, the textbooks would tell us that the Americans declared independence from Britain, worked up a national government, found that the rig-up—the Articles of Confederation—didn’t work well, and then adopted the Constitution that exists today.  Historians have long, unavailingly, offered a more complex story.[1] 

            A recent book restates the more complex view.[2]   By 1760, Britain’s North American colonies had achieved a level of economic and political development that would enable them to stand as a group as an independent political community.[3]  The expulsion of the French from North America ended a long-standing threat that had encouraged a reliance upon Britain.  Some debate on a federation of the colonies became inevitable.  Indeed, it had already begun during the French and Indian War.  In 1760, a new king with new ideas, George III, ascended the throne in Britain.  His stubborn determination to bend all resistance—domestic or colonial–to his policies poured fuel on the colonial debate.  Crisis followed crisis from the Stamp Act through the Townshend Acts to the “Intolerable Acts” that followed the Boston Tea Party.  Two successive “Continental” Congresses were chosen to voice and advance American concerns.  Widely-followed debates centered on the continuing issues of the desirable limits of government power and the safeguarding of individual rights.  In the end, a war for independence sought to turn beliefs into reality. 

            Between 1775 and 1781, the Americans improvised a war government out of the Continental Congress.  However, they also engaged in a re-writing of colonial charters of government into state constitutions.  Generally, the new constitutions sought to shift power from the executive to the legislature and to increase democratization.  State governments also stifled dissident opinion, notably that of Tory opponents of independence.  There was a war on after all.  This same government continued to manage national affairs after independence had been gained.  As before the war, so after the war: intense political debate had a very wide following.  In one sense, it offered a kind of political education.  In another sense, however, it was white-male-property-owning democracy in action.[4]  These debates gave birth to the Constitution and the Bill of Rights. 

            Yet the debates did not stop there.  What did the words mean?  How could they be put into action?  The ferment and debate continued.[5]  To take one example, who would decide the “constitutionality” of laws passed by Congress?  We have one answer today, but others then argued that the President could decide, others that the individual states could decide.  Then, what did the “men” in “all men are created equal” mean?  Did it mean only white males or did it mean “all mankind”?  Both abolitionism and women’s suffrage got rolling in the 1830s. 

            One trouble with “originalism” is that there were different factions of “originalists.” 


[1] Old favorites include: Lawrence Gipson, The Coming of the Revolution, 1763-1775 (1954); John Alden, The American Revolution, 1775-1783 (1954); and Richard B. Morris, The Forging of the Union, 1781-1789 (1987). 

[2] Akil Reed Amar, The Words that Made Us: America’s Constitutional Conversation, 1760-1840 (2021). 

[3] That is, they could manage the public business without falling into chaos; they could pay their way in the world without help from a foreign government. 

[4] Which seems to me preferable to government by only one or a few white-male-property-owning authoritarians. 

[5] In terms of establishing the credibility of the Executive Branch, see: Carol Berkin, A Sovereign People: The Crises of the 1790s and the Birth of American Nationalism (2017).