The Founders and the Constitution, Part 1: Introduction

The Founders and the Constitution, Part 1: Introduction
1787: The painting "Signing the Constitution of the United States" by Thomas Pritchard Rossiter. Painted in 1878, it resides at Independence National Historical Park, in Philadelphia. (MPI/Getty Images)
Rob Natelson
3/21/2023
Updated:
11/10/2023
0:00
Commentary

This series of essays focuses on those American Founders who exercised the most influence on the original Constitution as amended by the Bill of Rights. Each essay thumbnails the life and contributions of at least one individual. The essays also will tell you more about “the supreme Law of the Land.”

Before proceeding with the series, some terminology may be helpful. When the series uses the word “framers,” it means the 55 men who drafted (“framed”) the Constitution. They were the delegates to the Constitutional Convention, held in Philadelphia from May 25, 1787, to Sept. 17, 1787.

The word “ratifiers” refers to the 1,648 delegates at the 13-state ratifying conventions meeting from December 1787 (Delaware) to May 1790 (Rhode Island). The term “Founders” includes the framers, the most significant ratifiers, and major opinion leaders in the public debate over the Constitution.

A Reason for This Series

Most discussions about the original Constitution overemphasize the roles of just a few Founders. Americans hear a lot about James Madison, Alexander Hamilton, and George Washington, but little about others.

For example, in 1791—before the final ratification of the Bill of Rights—members of the Washington administration debated whether the new Constitution authorized Congress to charter a national bank. Here’s how that debate is usually portrayed:

“President George Washington asked Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson to write legal opinions on whether the Constitution authorized Congress to charter a national bank. Hamilton interpreted the Constitution expansively and concluded Congress could do so. Jefferson interpreted it narrowly and concluded that Congress could not. The president agreed with Hamilton, and even James Madison, who initially opposed the bank, later relented. The lesson is that expansive interpretation makes more sense than narrow interpretation.”

That’s pretty much how I learned the story in high school and college. But it leaves out key facts—and the omissions render it, as we lawyers say, “materially misleading.”

Here’s the rest of the story:

First: When the Constitution was written, the dominant way of reading legal documents was neither “expansive” nor “narrow.” It was a middle ground known as “fair construction.” Jefferson was wrong to interpret the document narrowly, and Hamilton was equally wrong to interpret it expansively.

Second: Whether the Constitution gave Congress the power to charter a bank was a genuinely close question. Both opponents and advocates had reasonable arguments.

Third: The usual narrative omits another Founder of great importance: Edmund Randolph. Randolph was the U.S. attorney general, and it was his job—not that of Jefferson or Hamilton—to write legal opinions for the president.

Fourth: Randolph was far more qualified than either Jefferson or Hamilton to address the issue. Before becoming U.S. attorney general, he had served for 10 years as attorney general of Virginia. He was a member of the committee that wrote his state’s constitution. As governor of Virginia, he led his state’s delegation to the Constitutional Convention. As a member of the convention’s “committee of detail,” he participated in writing the first draft of the Necessary and Proper Clause ... (Article I, Section 8, Clause 18), which was at the center of the bank dispute. And at the Virginia ratifying convention, Randolph (not Madison) was the lead spokesman for the Constitution and addressed the Necessary and Proper Clause.
By contrast, Jefferson had been in France during the constitutional debates. Hamilton had been absent during most of the framing. Moreover, he admitted that the Constitution didn’t match at all what he favored. After the convention, he even wrote a private memorandum (pdf) evidencing his intention to try to subvert the Constitution’s limits and “triumph over the state governments and reduce them to an entire subordination.”

Thus, neither Jefferson’s nor Hamilton’s constitutional opinion was particularly reliable.

Fifth: Randolph duly submitted a legal opinion using the “fair construction” method. He concluded that Congress had no power to charter a bank.
When you know these facts, you can see that what happened was very different from what is usually taught in school—and that Randolph has been unfairly neglected. In this series, he will be given his due.

The Founders’ Places on the Political Spectrum

Another common, and erroneous, narrative is that the Constitution was the product of a “conservative counterrevolution” against the “radicalism” of the American Revolution. This is categorically false.

The Constitution, especially as amended by the Bill of Rights, wasn’t the product of any one faction, conservative or otherwise. It was the product of negotiation among people of different views—with moderates working to bring all parties together. The result was a coalition spanning most, although not all, of the American political spectrum.

What was the political spectrum during the constitutional debates of 1787–1790? And where on the spectrum did the key Founders reside?

Different writers describe the spectrum in different ways, but I divide it into six loose categories, running from “right” to “left.” (Keep in mind that this isn’t the same way we use “right” and “left” today.) The six groups are as follows:

Group No. 1: Unreconstructed Tories

On the “far right” were the unreconstructed Tories. These were Americans who had been loyal to the Crown during the Revolution, and who never accepted the war’s outcome. They favored limited monarchy over republicanism, with privileges for the aristocratic few. Their view of individual rights was more constricted than that of other Americans. Instead of a new constitution, they preferred a deal with Britain whereby the states became largely self-governing units of the British empire.

During the Revolution and immediately afterward, many unreconstructed Tories fled to Canada or Britain, so during the constitutional debates, relatively few remained in America. For reasons of personal and professional safety, they tended to keep quiet.

Unreconstructed Tories were not part of the coalition that adopted the Constitution.

Ironically, the closest modern American analogs to unreconstructed Tories are on the political left: today’s “progressives.” While there are significant differences, “progressives” echo some key Tory beliefs: a limited view of individual rights, a broad view of government prerogatives, a tendency to promote certain government-created privileges as if they were rights—and disdain for the original Constitution.

Group No. 2: High Nationalists

Next from the “right” were the high nationalists. Unlike the Tories, they welcomed American Independence. But they admired the British political system and would have preferred to partially replicate it in America.

However, the high nationalists recognized that Americans would never accept a king or hereditary aristocracy. As the next best alternative, the high nationalists proposed a “high-toned” republic: an executive chosen for life and lifetime senators to complement an elected house of representatives.

High nationalists also favored the British model of an all-powerful central government.

Although the Constitution didn’t meet all their desires, several high nationalists contributed greatly to it. Featured in this series are Hamilton, John Adams of Massachusetts (in Europe during the Constitutional Convention, but the author of a widely consulted book on constitutions), and Gouverneur Morris, a New Yorker representing Pennsylvania at the convention.

Group No. 3: Moderate Nationalists

Next on the spectrum were the moderate nationalists. They also sought a very powerful central government, but they were more republican and democratic than the high nationalists. Moderate nationalists were willing to reserve a constitutional place, although a subordinate one, for the states.

From this group, the series will profile James Madison of Virginia, James Wilson of Pennsylvania, and George Washington (although his political stance is difficult to categorize).

The Virginia Plan, presented to the Constitutional Convention on May 29, 1787, embodied the moderate nationalist position.

Group No. 4: Centrists

The final terms of the Constitution reflect many of the centrists’ positions because they played a pivotal role in negotiating the final bargain.

Centrists favored a strong federal government but wanted to restrict it to specifically listed (“enumerated”) powers. Some centrists wanted the states to participate in selecting federal officials. The original Constitution’s provision giving state legislatures power to elect U.S. senators was a centrist proposal.

Like the moderate nationalists, centrists favored a fair amount of democracy. Unlike the moderate nationalists, they wanted enhanced protections for the rights of individuals and the position of the smaller states.

Prominent centrists included in this series are John Dickinson of Delaware, John Rutledge of South Carolina, Benjamin Franklin of Pennsylvania, and Roger Sherman of Connecticut.

Group No. 5:​ Conditional Federalists

Just to the “left” of the centrists were the “conditional federalists.” I coined that term for them because they (1) favored the federalism of the Constitution but (2) only on condition that the document be amended.

Among the changes they sought were a bill of rights, a more democratic House of Representatives, stronger protection for the states against central interference, and full state control of federal elections.

Because they differed on which amendments would be sufficient, the conditional federalists ultimately split on whether the Constitution should be ratified. Randolph eventually favored ratification, while his Virginia compatriot, George Mason, opposed it. Both men are thumbnailed in this series.

Group No. 6:​ Firm Antifederalists

Anchoring the “far left” were the firm antifederalists. Some wanted to retain the Articles of Confederation, with a modest increase in congressional power. Others didn’t think a 13-state union was viable in the long run and favored dividing the country. The most notable firm antifederalist was Patrick Henry of Virginia.
Some of the Constitution’s advocates were convinced that this group on the “far left” was receiving quiet support from unreconstructed Tories on the “far right.” (In my political experience, I have seen similar phenomena.) Perhaps the Tories were thinking that if the country split, some sections might return to British tutelage.

Thus, the coalition that ratified the Constitution excluded the two extremes but otherwise spanned the political spectrum.

To the individuals mentioned above, I reserve the right to add one more.

Final Comments

Two facts will become clear as the series progresses: First, several of the figures profiled have been seriously underestimated or underappreciated. Perhaps the leading examples are Dickinson and Randolph.

Second, although the men profiled in this series often disagreed with each other, each played a part of which Americans can be proud.

Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”