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).

My Weekly Reader 18 December 2018.

Today New England is a great place to go to college: stone walls, church graveyards full of famous men (and the occasional famous woman—repressive gender roles having been what they were), the leaves turning, “Whitey” and “Billy” Bulger of lore, the smart-mouth waitresses at “Legal Seafood,” Boston and Cambridge, with the Red-Line trains crossing from one to the other on a snowy night.  Then, in the 18th Century, New England was a hard place to make a living; the stone walls came from rocks dug out of fields with poor soil, churches reined-in human pleasure, people often died in the first few years after birth, the leaves turned because Fall came early and brutal winters followed close behind, Boston merchants would trade in anything (slaves, lumber, cod, rum) to make money and Boston fish-wives had famously sharp tongues, thugs had their uses for the better sort, and Cambridge’s college—Harvard–trained sour-puss Calvinist ministers.

No wonder then that many New Englanders were hard-bitten, judgmental, fond of pulling a cork, and avid for a better chance.  In a chiefly agricultural society, a better chance meant farmland, especially if they got to log-off and sell the timber first.  New England’s settlements spread along the coast and inland in Massachusetts, Rhode Island, and Connecticut.  Then westward toward New York, “down east” into Maine, and northwest from New Hampshire into the “New Hampshire Grants” (which would become Vermont).

Pioneers advancing into ground until recently commanded by the Native American allies of the hated French, the settlers of Vermont despised all authority that was not earned.  Before the Revolution, they resisted the colonial governments of both New Hampshire and New York.  The “Green Mountain Boys” began as the “militia” of those settlers who held land titles from Connecticut or New Hampshire rather than from New York.  They chose leaders like the ruffians Seth Warner and Ethan Allen.[1]

Came the Revolution.  Britain remained in control of Canada and might attack southward along a line that ran from Montreal as far as New York City.  Fort Ticonderoga—built by the French–commanded the invasion route along Lake Champlain.  Connecticut’s governor commissioned Ethan Allen to seize the fort from its British garrison.  Allen recruited 140 men after his own liking and headed toward “Fort Ti.”  He soon encountered Benedict Arnold and 70 men sent by Massachusetts on the same purpose.  Suppressing their mutual dislike in the interest of the common cause, the two men led their troops in storming the fort on 10 May 1775.[2]

Americans both despised the Catholic French Canadians and imagined that they wished to become “Americans.”[3]  Allen proposed an invasion, but the command went to another.  He free-lanced a coup to seize Montreal and spent three years in a British prison.  As a result of his imprisonment, Allen missed the Saratoga campaign (1777) in which Seth Warner played a notable role at the head of the “Boys” originally led by Allen.  Surrounded and cut off, British General John Burgoyne surrendered his army.   Saratoga was one of many decisive moments in the struggle for American independence.

In 1789, Allen died; in 1791, the “Grants” became the state of Vermont.

[1] Christopher S. Wren, Those Turbulent Sons of Freedom (2018).

[2] Later, the artillery captured at the fort provided the siege guns that drove the British out of Boston.

[3] It didn’t end there.  See: https://www.youtube.com/watch?v=KMEViYvojtY