Andrew Jackson made known he’d be present. John Calhoun signaled the same.

The anticipation intensified. Jackson was a Jeffersonian in most things, believing small government better than large, and state government generally preferable to national. But he was also president of the United States and sworn to defend the Constitution. How would he treat the South Carolina challenge to federal authority?

Calhoun wasn’t known to be the author of the South Carolina nullification manifesto, but he was thought to be in league with South Carolinians who openly endorsed nullification.

Jackson didn’t like Calhoun. He held a grudge from when he was a general in the army and Calhoun was secretary of war, and Calhoun hadn’t defended him against political attacks. Jackson took recent umbrage at the role of Calhoun’s wife in causing a rift among cabinet spouses and hindering the function of the administration. Jackson thought Calhoun complicit.

The tension between the president and the vice president made a ticket to the Jefferson birthday dinner all the more desirable.

Toasts were a highlight of dinners in those days. Twenty-four were scheduled. The day before the dinner, Jackson learned that several would endorse nullification. He prepared his response.

The hour of the dinner arrived. Jackson arranged to be late, lest his presence seem an endorsement of the sentiments of the toasters.

When the scheduled toasts were completed, other guests rose to add their voices to what had been said.

But Jackson as president was accorded the first response.

The room fell silent. Would the president denounce the nullifiers? Would he propose a compromise?

On the same subject, Daniel Webster had spoken for hours. Jackson spoke just seven words. “Our federal Union,” he said. “It must be preserved.”

His listeners let out their breath. Some applauded, others shuddered.

Then all fell silent again. John Calhoun had stood to answer Jackson.

The guests looked at one another. Would this be the moment of confrontation? Or would Calhoun try to smooth things over?

“The Union,” Calhoun said, holding his glass high.

Some thought this the extent of his toast. The nullifiers looked puzzled and disappointed, the Unionists pleased.

But there was more to the toast: “The Union—next to our liberty the most dear.”

This changed the whole tenor of Calhoun’s remarks, as he knew it would. He proceeded: “May we all remember that it can only be preserved by respecting the rights of the states and distributing equally the benefit and burden of the Union.”

The dueling toasts of Jackson and Calhoun brought their rift into the open. The division deepened until it drove Calhoun to resign the vice presidency at the end of 1832 to become one of South Carolina’s senators.

By then the nullification crisis had grown acute. The same election cycle that returned Jackson to the White House increased the number and determination of the nullifiers in South Carolina. Following Calhoun’s counsel, they summoned a convention, which voted to nullify the tariff: that is, to decree its nonpayment within the state. The convention went on to declare that any attempt by the federal government to enforce the tariff would be “inconsistent with the longer continuance of South Carolina in the Union.”

Secession had been implicit in Jefferson’s Kentucky resolutions. It had been implicit in Webster’s Rockingham memorial. But the South Carolinians were the first to speak openly of leaving the Union.

Jackson had hoped his Jefferson dinner toast would be sufficient to deter the South Carolinians from nullification and secession. Evidently it wasn’t.

He spoke again. He issued a proclamation making his position perfectly clear. “Disunion by armed force is treason,” Jackson said. As president, he would not stand for it. “The laws of the United States must be executed.”

Jackson sent another warning, through a South Carolina congressman who visited the White House before leaving Washington for his home state. He asked the president if he had a message for South Carolinians. “Yes, I have,” Jackson replied. “Please give my compliments to my friends in your state, and say to them that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.”

Jackson’s threat had the desired effect, which was to get the South Carolinians to take the Constitution more seriously. South Carolina deferred the date on which nullification would take effect, buying time for Henry Clay to collaborate with Calhoun on a schedule to phase out the tariff that had caused the trouble in the first place.

Jackson was pleased that the Constitution held firm. But he didn’t think nullification and secession had been defeated forever. “The tariff was only the pretext, and disunion and a southern confederacy the real object,” he said after the crisis ended. “The next pretext will be the negro or slavery question.”

Calhoun’s call for force against force frightened even the South Carolinians. What could this mean except civil war? The South Carolina legislature printed five thousand copies of the secretly authored manifesto but declined to adopt it.

Calhoun’s challenge circulated, and it required a response. Daniel Webster stepped forward. Times had changed since Webster burst on the national scene with his Rockingham memorial proclaiming the prerogatives of the states against the federal government. Jackson’s eleventh-hour victory at New Orleans had rescued America’s honor, making doubters like Webster seem defeatist. His Federalist party disintegrated and he’d been forced to find a new home. He sojourned with the Quincy Adams wing of the Republicans on his way to the anti-Jackson Whigs. Webster found a new physical home, as well, moving from New Hampshire to Boston.

He continued in politics without relinquishing his law practice. He was the most sought-after member of the Supreme Court bar, and among the most highly paid. Besides arguing and winning the McCulloch case, he argued and won a suit involving Dartmouth College, his alma mater, that became a landmark in the law of contracts.

In 1830 he rose in the Senate to rebut John Calhoun, albeit indirectly. Calhoun hadn’t acknowledged authorship of the South Carolina manifesto, and though he sat each day in the Senate as vice president, he said nothing of substance there. The South Carolina case was argued instead by Robert Hayne, a fiery orator albeit less sophisticated than Calhoun. For two days Hayne berated the North, especially New England, and those who represented New England, including Webster. Hayne hammered upon the tariff, upon what he deemed the hypocrisy of Northerners, and upon their determined misreading of the Constitution.

Who were the true enemies of the Union? asked Hayne. “Those who are in favor of consolidation; who are constantly stealing power from the states and adding strength to the federal government; who, assuming an unwarrantable jurisdiction over the states and the people, undertake to regulate the whole industry and capital of the country.”

Who were the Union’s true defenders? “Those who would confine the federal government strictly within the limits prescribed by the Constitution, who would preserve to the states and the people all powers not expressly delegated, who would make this a federal and not a national union, and who, administering the government in a spirit of equal justice, would make it a blessing and not a curse.”

Hayne professed to be a peaceable man. “This controversy is not of my seeking,” he said. But South Carolinians were a proud people and jealous of their rights. When insulted, they didn’t turn the other cheek. “If the gentleman provokes the war, he shall have war. Sir, I will not stop at the border. I will carry the war into the enemy’s territory.”

The city of Washington couldn’t wait to hear Webster’s reply. Businesses closed early to let customers and proprietors crowd into the Senate gallery. The House of Representives cleared its schedule so the members could take seats on the Senate floor to hear Webster.

He began by disavowing ill feelings toward South Carolina or its great figures. “I claim them for countrymen, one and all: the Laurenses, the Rutledges, the Pinckneys, the Sumpters, the Marions,” Webster said. Nor did he feel obliged to relate the history of Massachusetts in leading America to independence. “The world knows it by heart.”

He cut to his purpose in speaking this day. “It is to state and to defend what I conceive to the true principles of the Constitution under which we are here assembled.” He identified the crux of his difference with Hayne—and with Calhoun, though Webster didn’t mention the vice president, sitting before him. “The great question is, whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?” The South Carolinians said the prerogative was the states’. Webster said it was the federal judiciary’s.

The question turned on the nature of the national government and the basis of its authority. “Whose agent is it?” he asked. “Is it the creature of the state legislatures, or the creature of the people?”

Webster chose the people. “It is, sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people.”

Webster considered the alternative: that the states controlled the national government. This would produce chaos, he said. “In Carolina, the tariff is a palpable, deliberate usurpation; Carolina, therefore, may nullify it and refuse to pay the duties. In Pennsylvania, it is both clearly constitutional and highly expedient, and there the duties are to be paid.” No country could live under such a regime.

Webster asked his listeners to reflect on America’s experience with the Constitution and the Union it established. “The people have preserved this, their chosen Constitution, for forty years, and have seen their happiness, prosperity and renown grow with its growth and strengthen with its strength. It is to that Union we owe our safety at home and our consideration and dignity abroad.”

The nullifiers complained of the cost of the tariff. But what would be the cost of nullification? The alternative to the Union was not liberty but anarchy and civil war. Webster shuddered to envision what nullification portended. “When my eyes shall be turned to behold, for the last time, the sun in Heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on states dissevered, discordant, belligerent; on a land rent with civil feuds or drenched, it may be, in fraternal blood!”

Webster prayed Americans be spared such a fate. “Let their last feeble and lingering glance rather behold the glorious ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original luster, not a stripe erased or polluted, nor a single star obscured, bearing for its motto no such miserable interrogatory as ‘What is all this worth?’ Nor those other words of delusion and folly, ‘Liberty first and Union afterwards’—but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart: ‘Liberty and Union, now and forever, one and inseparable!’”

The 12th Amendment solved the problem of electing vice presidents but not the problem of the vice presidency itself. No such confusion recurred as had made a mess of the 1800 election. But the vice presidency remained an office stuck in a limbo between the executive branch and the legislature. Vice presidents had no constitutional role in the executive except to wait for presidents to die. Meanwhile they presided over the Senate, where they acted like the speakers of the House of Representatives except that they couldn’t speak and could vote only to break ties. Created in the same constitutional breath with the presidency, the vice presidency was sufficiently noteworthy to attract men of distinction, but it left them underemployed and frustrated.

John Calhoun was more frustrated than most. The South Carolinian was universally judged one of the most talented men of his generation. His mind operated like a steel trap and his energy knew no bounds. In the golden age of American political oratory, only Daniel Webster and Henry Clay were thought his equals. He was the first of that famous trio to achieve cabinet office, serving as secretary of war under James Monroe. He was the first to attain national elective office, as vice president under John Quincy Adams.

Strangely, to a later way of thinking, Calhoun retained the vice presidency when Adams was defeated by Andrew Jackson in 1828. The 12th Amendment had been written to accommodate parties, but when the party system broke down in the 1820s, after the demise of the Federalists and before the emergence of the Whigs, electors felt free to cast their vice presidential ballots in different directions from their presidential ballots. In effect, the vice presidential campaign was separated from the presidential campaign.

The result was a reprise of the late 1790s. Then, John Adams had been burdened with a vice president who was his sworn foe, Thomas Jefferson. Now, Jackson had to deal with Calhoun, who proved to be an enemy even more mortal.

The point of sharpest difference between Jackson and Calhoun was the most basic constitutional question: What, exactly, was the United States? Was it an alliance—a compact—of essentially sovereign states? Or was it a sovereign union of the American people, with the states as subordinate subunits?

The question was raised by a tariff approved by Congress in 1828. Tariffs served two purposes: to raise revenue for the government and to protect domestic producers from foreign competition. No one had a constitutional objection to the former purpose, but many disputed the latter. Calhoun was foremost of the disputers.

The 1828 tariff—called the “tariff of abominations” by its critics— protected American manufacturers at the expense of the consumers of the manufacturers’ products. Because American manufacturing was concentrated in the North, Southerners like Calhoun believed it discriminated against their section.

Calhoun made this argument in a manifesto he drafted for friends in South Carolina. He kept his authorship secret, for the same reason Jefferson had concealed his role in writing the Kentucky resolutions in 1798: it seemed untoward for an officer of the federal government to argue against the authority of the federal government.

This was exactly what Calhoun did. He took Jefferson’s nullification argument against the Alien and Sedition Acts and applied it to the tariff, which he condemned as “unconstitutional, unequal and oppressive, and calculated to corrupt the public virtue and destroy the liberty of the country.” Nowhere did the Constitution give Congress the authority to elevate one geographic section or economic sector over others. Yet the tariff did so.

Speaking for his fellow Southerners, who mostly lived by agriculture, Calhoun said, “We are serfs of the system out of whose labor is raised not only the money paid into the treasury but the funds out of which are drawn the rich rewards of the manufacturer.” The rich rewards came from the higher prices the Northern manufacturers were able to charge because of the tariff.

The tariff was pernicious in its operation. “No system can be more efficient to rear up a moneyed aristocracy,” Calhoun said. “Its tendency is to make the poor poor and the rich richer.”

What was to be done? How should the South respond?

“Power can only be restrained by power,” Calhoun said. “The different governments will control each other.” Here he meant the state governments controlling the federal government.

Speaking now for South Carolina, Calhoun said the state should call a convention to consider the tariff and its effects on South Carolinians. If the convention decided the tariff was unconstitutional, it should declare the tariff “null and void.”

Jefferson had gone this far in 1798. Calhoun went farther.

If the federal government insisted on enforcing the tariff, South Carolina should answer with force, Calhoun said. “It will be her sacred duty to interpose—a duty to herself, to the union, to the present and to future generations, and to the cause of liberty over the world—to arrest the progress of a usurpation which, if not arrested, must, in its consequences, corrupt the public morals and destroy the liberty of the country.”

When John Marshall in the McCulloch case claimed for the Supreme Court the final word in determining what the Constitution meant, he didn’t reckon with Andrew Jackson, who at the time was merely a famous general. Jackson was no constitutional scholar—although he had been a judge in Tennessee—but he did become president, and as president he expressed his own thoughts about what the Constitution meant.

Jackson didn’t like banks. Westerners often didn’t. Money was chronically short in the West, and locals blamed banks for sending their hard-earned dollars east to big banks there. Jackson particularly disliked the Bank of the United States, for its great size and the monopoly it had on the business of the federal government. Jackson was an old-school Republican in philosophy, and he deemed the national bank unconstitutional, despite what Marshall had said in the McCulloch case.

Yet Jackson didn’t propose to challenge the bank. Its charter would run out in 1836, far into his second term, should he serve twice, and he would let it die quietly.

Henry Clay had a different plan. Back in Congress, in the Senate, after serving as John Quincy Adams’s secretary of state, Clay still had his eye on the presidency. He decided to push for an early renewal of the national bank’s charter, to make it an issue in the 1832 election. His plan succeeded, and the bill renewing the bank’s charter landed on Jackson’s desk.

If Jackson signed the bill, he would hand a victory to Clay. If he vetoed the bill, he would anger the bankers and the businesses that had grown to depend on the bank. And if he vetoed on grounds of unconstitutionality, he would be defying John Marshall, still chief justice.

Jackson didn’t hesitate. He vetoed.

In his explanation, he took on Marshall directly. “It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court,” Jackson said, referring to the McCulloch case. “To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the states can be considered as well settled.”

Opinion on the bank was far from settled. “One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor.” Jackson extrapolated from his own election to surmise that more Americans currently opposed the bank than supported it.

Nor did Marshall’s opinion carry definitive weight. “The Congress, the executive, and the court must each for itself be guided by its own opinion of the Constitution,” Jackson said. “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the president to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the president is independent of both.”

Jackson realized that the bank didn’t have to be unconstitutional for him to veto it. The Constitution allows a veto for any cause. The six presidents before Jackson had vetoed sparingly. Madison had the most vetoes, with five, plus two pocket vetoes (which occur when a president does not sign a bill at the end of a legislative session). The other five presidents had three total vetoes among them.

Jackson rang up five regular vetoes and seven pocket vetoes in his two terms. Most were over not constitutionality but advisability. Beyond thinking the bank unconstitutional, he considered it inadvisable—unfair—because it represented an undemocratic capture of government by the elite. “It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes,” Jackson said. The bank was an instance.

Jackson articulated the ethical basis for democracy. “In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law,” he said. “But when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society—the farmers, mechanics and laborers—who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their government.”

On behalf of the American people, Jackson asked only fairness from government. “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing.”

Jackson touched a chord here. Equality as a political value appeared nowhere in the Constitution. Equality was something the Declaration of Independence talked about—“All men are created equal”—but not the Constitution. The Declaration stressed values, the Constitution process.

Yet as Americans embraced democracy, they did so in the spirit of the Declaration. Americans were moving toward grafting the values of the Declaration onto the processes of the Constitution.

Jackson gave them a formula with his phrase “equal protection.”

The Constitution of 1787 was written for a republic. It was not written for a democracy. The framers mostly distrusted democracies, the populist form of republics. In the 1780s, ordinary Americans were expected to defer to their betters, whom they would elect and obey. Most did. They continued to do so through the two terms of George Washington. But the deference frayed with the emergence of parties, and after John Adams and Thomas Jefferson slugged it out twice, with Adams winning the first round and Jefferson the second, deference was a dead letter. Ordinary folks—men, that is, and white—demanded their say.

They got it first in the new states of the West. The Appalachians served as a filter of social class. The rich rarely crossed the mountains, being content with life in the East. The truly poor couldn’t afford the journey. Most emigrants were middling sorts, making the new states more egalitarian than the old. Restrictions on voting, especially property requirements common in the East, seemed silly in the West. Universal suffrage among adult white males became the rule. In that era, this was as democratic as things could be.

The eastern states felt obliged to follow suit, lest they lose population to the western upstarts. The result was that by the 1820s, democracy was the American norm.

With ordinary men voting, they wanted someone to vote for. The Virginia dynasty of Republicans Jefferson, Madison and Monroe seemed tired and anachronistic. Party discipline among Republicans was lax, for the Federalists had fallen on hard times, leaving the Republicans to quarrel among themselves for offices.

Tennessee’s contingent in Congress talked up Andrew Jackson as a democratic president for a democratic age. Jackson was best known for beating the British in the 1815 battle of New Orleans, but he had been a senator from Tennessee, a member of the House of Representatives, and military governor of territorial Florida. As the 1824 election approached, Jackson excited common folks more than any other candidate.

John Quincy Adams, Monroe’s secretary of state at a time when the holder of that position was the heir apparent to the presidency, was the choice of the more respectable Republicans. Two other candidates, Henry Clay and William Crawford, had smaller followings.

The 1824 presidential election was the first for which popular voting totals were generally reported. Per the Constitution, electors still made the final choice. But by this time nearly all the states allowed voters, rather than the state legislators, to elect the electors. Voters would go to the polls and select a printed ballot listing the Jackson electors, say, or the Adams electors, and deposit that ballot in the ballot box.

Jackson garnered the most popular votes, not that it mattered. He won the most electoral votes, too. This mattered more. But he didn’t win a majority of the electors, which mattered the most. And so, per the Twelfth Amendment, the race went to the House of Representatives, where the delegations of the several states, casting one vote each, would decide among the top three electoral-vote getters.

Henry Clay finished fourth and thus didn’t make the finals. But because he was the speaker of the House of Representatives, he had influence over which of the three finalists would win. Clay preferred Adams and delivered the victory.

This by itself would have miffed Jackson and his supporters, who thought his plurality of electors made him the most plausible of the final three. But what utterly outraged them was Adams’s post-election appointment of Clay as secretary of state and next heir apparent. “Corrupt bargain!” the Jacksonians cried. Stolen election!

They didn’t try to overturn the 1824 decision. Instead they mobilized at once for 1828. And when that election arrived, they were ready. Better organized and more highly motivated than ever, they swept Jackson into office and Adams out.

Thousands of Jackson’s supporters descended on Washington for his inauguration. To the residents of the city, accustomed to the gentility of the Virginians and Adamses who had monopolized the presidency, they seemed a barbarian horde. They stormed the White House during Jackson’s inaugural reception, muddying the carpets, breaking the china and tearing the drapes. In their enthusiasm they nearly crushed Jackson himself, who was forced to flee by a rear door.

This was democracy in the age of Jackson. The Constitution wasn’t written for it. If anything, the Constitution’s provisions for an electoral college and indirect election of senators were written against such unchecked enthusiasm as Jacksonian democracy entailed. The question now was whether the Constitution could survive that enthusiasm.

The petition and the proposal sparked a constitutional battle that lasted several months. At the center was slavery, over which moral positions were becoming entrenched. Northerners increasingly deemed the institution incompatible with republicanism. Most were reluctant to start a fight over slavery in the original states, where it was an inheritance from British imperial law. But most were equally reluctant to see it spread beyond its existing boundaries. The part of the Louisiana Purchase that became the state of Louisiana had a sizable slave population from its days under French and Spanish rule. Nothing could be done about that. But the rest of the Louisiana territory had been largely slave-free, and most Northerners wanted to keep it that way.

The question was whether the Constitution allowed a ban. A precedent in favor was the Northwest Ordinance of 1787, which forbade slavery in the territory above the Ohio River. This ordinance had been adopted by Congress under the Articles of Confederation rather than the Constitution. But the new Congress adopted most Confederation measures as a matter of course.

The Constitution didn’t say that states could abolish slavery within their borders. But the delegates to the Philadelphia convention assumed they could, as several states had done, and the Constitution didn’t say they couldn’t. That remained the dominant attitude in 1820.

Regarding slavery in the territories there was no such agreement. The territories were creatures of Congress. Southerners claimed as much right as Northerners to legislate for the territories. They also claimed constitutional protection for slaveholders to take their “property”—their slaves—into the territories when they migrated there. “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” said Article IV. Northerners took their horses and cattle into the territories. Southerners should be able to take their slaves.

Something else made Missouri a flash point. In 1787 slavery seemed a dying institution. The tacit agreement at Philadelphia to ban the import of slaves after twenty years—which had transpired as scheduled—appeared to many delegates a precursor to an end to slavery itself, undertaken by the slave states.

But slavery didn’t die. Eli Whitney invented an engine (or “gin”) for separating cotton seeds from fibers, thereby slashing the production cost of cotton, which became a fiber for the masses rather than just the classes. New demand for cotton drove settlement of the Gulf Coast plain west from Georgia to Louisiana. New plantations required slaves, raising the value of slaves throughout the South and giving slavery a new lease on life.

This overturned all manner of expectations. Representation in the House of Representatives, as well as taxes, had been specified by section 2 of Article I: “Representatives and direct taxes shall be apportioned among the several states which may be included within this Union according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three fifths of all other persons.” The “other persons” were slaves.

The three-fifths signified a guess as to the labor value of slaves relative to free workers, given that slaves had little incentive to be productive. Representation was about numbers of people but also about wealth, as the reference to taxes indicated. The 1820 census showed that Virginians slightly outnumbered Pennsylvanians, but in the next congressional elections, Pennsylvanians elected 26 representatives while Virginia elected 22, on account of the 40 percent deduction for slaves.

Nonetheless, Northerners complained that they were the ones being shortchanged by the Constitution’s three-fifths rule. They argued that slaves should count zero fifths—not at all—given that slaves didn’t vote. The fact that Northerners and Southerners each thought the rule discriminated against them revealed how divisive slavery had become.

And how high the stakes were in the fight over Missouri. Southern members of Congress insisted that Missouri be admitted with slavery. Northerners refused.

A break in the deadlock appeared possible when Maine, heretofore part of Massachusetts, applied for separate statehood. Maine was the last place where slavery would be allowed or even wanted, and compromising types proposed linking the admission of the two states: free Maine and slave Missouri.

Northerners weren’t quite mollified. They demanded assurance that Missouri not become a model for the rest of the American West.

Southerners met them halfway. The northern part of the West, the larger part, would be off limits to slavery, but the southern part would be open to it.

The deal was struck, and the dividing line was drawn at 36 degrees 30 minutes.

The Missouri Compromise settled two questions. First: Would the West be slave or free? Answer: Mostly free.

Second: Which branch of the American government had authority to answer the first question? Answer: Congress.

This second answer wasn’t automatic. The Constitution didn’t give any of the branches authority over slavery in the territories. But the president, in this case James Monroe, didn’t claim it. Neither did the Supreme Court, still under John Marshall.

By default it fell to Congress. There it would remain for more than three decades.

After Congress in 1791 approved Alexander Hamilton’s proposal for a national bank, the Bank of the United States commenced operations under a twenty-year charter. Hamilton’s Federalist philosophy of governance survived his death in an 1804 duel with Aaron Burr, but it was weakened by the ascendance of the Republicans under Thomas Jefferson and then James Madison, who was president when the bank’s charter expired in 1811. Madison had opposed the bank’s creation as unconstitutional, and he opposed its recharter as unconstitutional. The Republican majority in Congress agreed with him, and the bank died.

Thinking changed during the War of 1812. The lack of a national bank hindered the war effort, convincing Madison in 1816 to propose and Congress to approve creation of a second Bank of the United States.

Not everyone appreciated the conversion. Supporters of state banks had always resented the advantage the national bank enjoyed by virtue of its size. Friends of state banks in Maryland persuaded the legislature there to tax the operations of the national bank, to level the field. The national bank’s Baltimore branch refused to pay the Maryland tax. When Maryland insisted, litigation ensued. The case that reached the Supreme Court in 1819 was styled McCulloch v. Maryland.

Daniel Webster argued for McCulloch, which was to say in favor of the Bank of the United States. Webster contended that the bank was constitutional, under the “necessary and proper” clause. He also contended that the Maryland tax on the bank was unconstitutional, as violating the supremacy clause making federal law the “supreme law of the land.”

Counsel for Maryland was Luther Martin, a delegate to the Philadelphia convention who walked out the convention before its end and campaigned against ratification, on grounds that the Constitution granted too much power to the national government. Martin took positions opposite to Webster’s, saying the bank was unconstitutional, not being “necessary” to the operations of the government. Since the law creating the bank was void, the supremacy clause didn’t apply.

In the 1803 Marbury case, Marshall had asserted the supremacy of the Supreme Court over Congress and the president in interpreting the Constitution. Now, in the McCulloch case, he proclaimed the supremacy of the federal government over the states.

But first he expounded a broad interpretation of the Constitution as it applied to the powers of Congress. “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect,” Marshall said.

Marshall was reinterpreting “necessary and proper” as “necessary or proper,” with “appropriate” standing in for “proper.”

He reiterated and elaborated: “If a certain means to carry into effect any of the powers expressly given by the Constitution to the government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.”

Here Marshall nodded to necessity, but he let Congress judge what necessity meant. This put him on dubious ground. A basic principle of politics and law holds that people should not be the judges in their own cases.

Moreover Marshall appeared to give back to the legislature some of the ground he had claimed for the judiciary in the Marbury case, in which he had overruled Congress.

Yet the upshot was clear. The Constitution was to be interpreted broadly, in favor of the federal government.

As for the power of the states to restrain the federal government: Forget about it. “The state governments have no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers,” Marshall said. “The states have no power, by taxation or otherwise, to retard, impede, burthen, or in any manner control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national government.”

“The power to tax involves the power to destroy,” Marshall asserted. “If the states may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states.”

The supremacy clause meant what it said. The federal government was supreme whenever it chose to act. The states had to step aside.

John Marshall hadn’t attended the Philadelphia convention. He wasn’t as distinguished as the delegates his Virginia neighbors chose. As a result he had nothing to do with the writing of the Constitution.

But he had a great deal to do with the interpretation of the Constitution. The Philadelphia delegates had the first word in debates over what the Constitution said and what the government could do. Marshall claimed the last word for the Supreme Court.

But wars can have a divisive effect, too. The War of 1812, the first waged under the Constitution of 1787, split the two parties, the Republicans and the Federalists. It also split the South and the West, on one hand, from New England, on the other. New England Federalists opposed the war as a land grab by Republican Southerners and Westerners. They predicted that the war would go badly, and when it did they didn’t disguise their pleasure at being proved right.

The New Englanders had been cranky ever since John Adams lost the presidency to Thomas Jefferson. When the election of James Madison in 1808 made him the third Virginian out of four presidents, some asked themselves what future there was for their region in the Union. A bill to admit Louisiana as a state in 1811 prompted Josiah Quincy, a congressman from Massachusetts, to warn about the effect of its passage, which would shift the nation’s center of gravity south and west and marginalize New England even more. “I am compelled to declare it as my deliberate opinion,” Quincy said, “that if this bill passes, the bonds of the Union are virtually dissolved, that the states which compose it are free from their moral obligations, and that as it will be the right of all, so it will be the duty of some, to prepare definitely for separation—amicably if they can, violently if they must.”

The bill passed, causing New Englanders to appreciate how little influence they had in national affairs. The declaration of war against Britain in 1812 rubbed the message in.

Daniel Webster was a promising lawyer in New Hampshire who was developing ambitions for politics. An antiwar rally in the town of Rockingham produced calls for Webster to summarize the complaints of the locals. His Rockingham memorial, sent to Madison, established him as a serious thinker on constitutional law and politics.

“We hold the right of judging for ourselves, and have never yet delegated to any government, the power of deciding for us what pursuits and occupations best comport with our interests and our situation,” Webster said of his neighbors and New England generally. Those pursuits and occupations included overseas trade, especially with Britain, which the war and the policies that produced it had ravaged. “It could not therefore be without alarm and apprehension that we perceived in the general government a disposition to embarrass and enthrall commerce by repeated restrictions, and to make war by shutting up our own ports.” Webster was referencing an embargo on trade approved by Congress.

When the New Englanders had complained, they were told to be quiet and accept the will of the Republican Congress and president. “We heard ourselves admonished finally to retire from the sea and ‘to provide for ourselves those comforts and conveniences of life for which it would be unwise ever more for you to recur to distant countries,’” Webster said. The insult was obvious. “We do not hesitate to say that we deem this language equally unconstitutional and arrogant.”

Webster characterized New England’s understanding of the Constitution. “We originally saw nothing, and can now see nothing, either in the letter or the spirit of the national compact which makes it our duty to acquiesce in a system tending to compel us to abandon our natural and accustomed pursuits.” Webster advisedly used the term “compact” for the Constitution. A compact was an agreement, in this case among the several states. The Constitution was composed of states, not of people. The implication was that what the states had made, the states might unmake.

“We regard the Constitution as an instrument of preservation, not of change,” Webster said. The Constitution didn’t create something that hadn’t existed. “We take its intention to have been to protect, by the strong arm of the whole nation, the interests of each particular section.”

Webster offered a warning. “We are, sir, from principle and habit attached to the union of the states,” he told Madison. “But our attachment is to the substance and not to the form. It is to the good which this union is capable of producing, and not to the evil which is suffered unnaturally to grow out of it. If the time should ever arrive when this union shall be holding together by nothing but the authority of law; when its incorporating, vital principle shall become extinct; when its principal exercises shall consist in acts of power and authority, not of protection and beneficence; when it shall lose the strong bond which it hath hitherto had in the public affections; and when, consequently, we shall be one, not in interest and mutual regard, but in name and form only; we, sir, shall look on that hour as the closing scene of our country’s prosperity!”

Webster hoped such a time would never come. “We shrink from the separation of the states as an event fraught with incalculable evils,” he said. Yet the present made it seem all too possible. “If a separation of the states ever should take place, it will be on some occasion when one portion of the country undertakes to control, to regulate and to sacrifice the interest of another; when a small and heated majority in the government, taking counsel of their passions, and not of their reason, contemptuously disregarding the interests and perhaps stopping the mouths of a large and respectable minority, shall by hasty, rash and ruinous measures, threaten to destroy essential rights and lay waste the most important interests.”

Webster said that New England would not be the instigator of disunion. “The government may be assured that the tie that binds us to the union will never be broken by us,” he said. But New England couldn’t let its interests be trampled. If they were, the government would be the party instigating disunion.

The government must do right by New England, Webster said. “It only remains for us to express our conscientious convictions that the present course of measures will prove most prejudicial and ruinous to the country; and our just expectation that the government will adopt such a system as shall restore to us the blessings of peace and of commerce.”

Webster would become the great defender of the Union against any who talked of secession. But at the beginning of his career he walked both sides of the street. New England wouldn’t break the Union, he said. Yet the compact of the states was valued for its substance, not its form. If the substance continued to erode, New England might declare the government had broken the Union. All bets would be off.

John Marshall was a cousin of Thomas Jefferson, but their kinship didn’t extend to politics or philosophy. Marshall was a Federalist and a broad-constructionist of the Constitution. He was also the chief justice of the United States, nominated by John Adams in the final weeks of the Adams administration and approved by the lame-duck Federalist majority in the Senate. Adams appreciated the life tenure of federal justices, and though Federalists had been run out of the legislative and executive branches, he hoped they might hold the judicial branch for years to come. Adams couldn’t have chosen better than Marshall for this purpose. Marshall would head the Supreme Court for thirty-five years. During that time he would do more to interpret the Constitution in a way that bolstered federal authority than any other justice in American history.

In the process, Marshall effectively rewrote Article III, setting the judiciary on a path that would make it the equal of the legislature and the executive.

The telling blow came early. Marshall wasn’t the only late appointment by Adams. The Judiciary Act of early 1801 created sixteen new judgeships, which Adams hurried to fill before leaving town ahead of Jefferson’s inauguration. The Republicans derided the appointees as “midnight judges” and determined to block the appointments that hadn’t been finalized.

One of the new men was William Marbury, who had been confirmed by the Senate but hadn’t received the commission formally making him a judge. Jefferson instructed James Madison, just confirmed as secretary of state, to withhold the commission. By this means he hoped to prevent Marbury, a Federalist, from taking a place Jefferson wanted for a Republican.

Marbury sued Madison for delivery of the commission. John Marshall insisted that the Supreme Court hear the case.

This might have seemed odd, in that Marbury’s job was of middling importance. The Supreme Court had declined to hear cases of greater seeming significance.

Marshall had his reasons. Ambition was one. Marshall was a capable fellow. He had been a member of Congress and secretary of state. But he was a Federalist at a time when the Federalists were in eclipse. He was a Virginian when cousin Jefferson and Jefferson’s proteges Madison and James Monroe clogged the path to higher office. If he was going to make a mark, it would have to be from the federal bench.

Political philosophy gave Marshall another reason. Separation of equally balanced powers was a tenet of Enlightenment thinking on ideal government. The Constitution as written fairly well balanced the legislative and executive branches, but it left the role of judicial branch ambiguous if not downright inferior.

For his own sake and that of the court he headed, Marshall set out to elevate the judiciary.

He proceeded with a craftiness not dissimilar to that of Washington in the matter of neutrality. Like Washington, Marshall in the case of Marbury v. Madison delivered an innocuous outcome but by a method that eventually proved profound.

Marshall and the court’s majority ruled in favor of Madison and implicitly Jefferson. Marbury did not receive his commission and didn’t take his seat on the federal court.

But the basis for the verdict was an assertion of the right of the Supreme Court to review federal statutes and overturn those it deemed unconstitutional. Reaching back more than a decade, Marshall declared article 13 of the Judiciary Act of 1789, which established jurisdiction in the present case, to be unconstitutional. Marbury’s counsel had relied on this article, and by knocking it down, Marshall defeated their argument.

Jefferson understood what Marshall was doing. The chief justice was giving the president a victory in a small matter while claiming a power for the court beyond anything a narrow reading of Article III supported.

Yet there was nothing Jefferson could do in response. He had won the case. Even if Supreme Court decisions were appealable—which they aren’t, as the name of the court makes clear—judicial reasoning, as opposed to a judicial outcome, isn’t something that can be appealed.

Jefferson grudgingly moved on to other things.

So did Marshall. His exercise of judicial review in Marbury v. Madison marked the only time in his career on the bench he fired this heavy artillery. Not until the late 1850s would the Supreme Court negate another federal statute.

But Marshall’s precedent stood. And in law, as practiced in America and other countries that inherited the precedent-based common-law tradition from England, the longer a precedent stands, the more authority accrues to it.

John Marshall played a long game.

At the heart of Jefferson’s philosophy of government was a strict interpretation of the powers the Constitution conferred on Congress and the president. Jefferson took the conjunction seriously in the “necessary and proper” clause of Article I. A measure proposed by the legislature or the executive had to be both necessary and proper to survive Jefferson’s scrutiny.

By contrast, loose constructionists like Alexander Hamilton implicitly read “or” for “and.” If a measure was proper, it didn’t have to be necessary. Jefferson roundly criticized them for bending the Constitution to their own purposes. In his inaugural address he promised to restore the principle of limited government—government limited by a narrow reading of the Constitution.

Yet he soon encountered the kind of temptation felt by nearly every president. In office, Jefferson found power less frightening than it had seemed when he was not in power. Then, he had worried that power corrupted character and endangered the republic. Now he wasn’t worried because he was confident power wouldn’t corrupt him.

The test came in 1803 amid an effort by Jefferson to purchase New Orleans, the French-founded city near the mouth of the Mississippi, from French emperor Napoleon. Farmers west of the Appalachians required secure port facilities at New Orleans in order to send their harvests out to the world. The southern boundary of America’s western territories lay north of New Orleans. Jefferson wanted to move part of that boundary to add New Orleans to Mississippi Territory, and he was willing to pay for the right to do so.

Napoleon surprised Jefferson with a counteroffer: to sell not only New Orleans but all of Louisiana territory, which included the entire Mississippi watershed west of the great river.

Jefferson had long obsessed over the need for American territorial expansion. He believed that freehold farmers were the peculiar repository of republican virtue, and he was aware that the American population was doubling every generation. If America’s supply of land didn’t double each generation too, the farmers would find themselves tilling smaller and smaller plots. This foretold a grim future.

Consequently, Napoleon’s offer of all of Louisiana seemed to Jefferson a brilliant opportunity. Louisiana was almost as large as the entire United States.

There was a problem. The Constitution nowhere granted either the president or Congress authority to acquire new territory. No one would have fussed much over the few square miles a transfer of New Orleans would have entailed. But Louisiana was almost a million square miles. Acquiring an empire that large required more than a wave of the hand over the Constitution.

Jefferson initially pondered a version of the definitive solution to any deficiency in the Constitution: a constitutional amendment. An appropriate addition to the enumerated powers of Article II would allow Jefferson in good conscience to seize the opportunity Napoleon offered.

But amending the Constitution would take months at least. Napoleon had a reputation for acting impulsively. He might change his mind about Louisiana while Jefferson was trying to change the Constitution.

Jefferson refused to take the risk. He swallowed his pride and his strict-constructionist philosophy and accepted Napoleon’s offer. It galled him to sound positively Hamiltonian in appealing to the “proper” part of the elastic clause. But the national interest in acquiring territory enough for generations of American farmers was worth the damage to his scruples.

The Federalists didn’t try to hide their glee at Jefferson’s discomfiture. A few toyed with blocking the Lousiana purchase, simply to vex the one who had so often assailed them for doing what he was doing now.

But they concluded that Louisiana was too valuable to the American future to play politics over. They joined most of the Republicans in voting to accept Jefferson’s decision and fund the purchase.

Washington’s 1793 arrogation of the right to proclaim neutrality had begun the stretching of the Constitution. Jefferson’s 1803 conjuring of authority to purchase territory stretched it further. Prescient observers detected a pattern. More than a few wondered how much stretching the Constitution could stand.

The ten amendments that form the Bill of Rights are often treated as part of the original Constitution, being almost contemporaneous with the original text and having been written by the prime architect of the Constitution, James Madison.

Subsequent amendments fall into a different category. They are fixes to flaws in the original text. Some of the flaws were made apparent by the operation of the government the Constitution created. Others were flaws revealed by changing ideas of what government ought to do.

The Eleventh Amendment arose from a lawsuit brought in federal court by a South Carolina merchant named Alexander Chisholm against the state of Georgia for payment of debt. The verdict in favor of Chisholm was less important than the fact that the Supreme Court upheld Chisholm’s right to use the federal courts to sue across state lines. The court cited Article III of the Constitution, which gave the Supreme Court original jurisdiction in any suit “between a state and citizens of another state.”

The many lawyers at the Philadelphia convention failed to appreciate how much the states would resent this threat to the principle of sovereign immunity, which prevents most lawsuits against governments for actions taken in the ordinary course of government business. Without it, governments might be buried in lawsuits. Georgia courts protected Georgia’s government, but Article III opened Georgia to Chisholm’s suit in federal court.

As soon as the Chisholm decision came down, the states almost as one demanded a fix. Congress responded with the Eleventh Amendment, which read, “The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”

The amendment was referred to the states. The requisite three-quarters of them ratified by early 1795. Loophole closed. Sovereignty immunity restored.

The Twelfth Amendment arose from an even more embarrassing snafu. America’s first two presidential elections were essentially uncontested coronations of George Washington. The third election, in 1796, was the first contested election and the first in which political parties played an important part. Federalist John Adams narrowly defeated Republican Thomas Jefferson. Because the Constitution had been written without parties in mind, the framers supposed that the runner-up would be the most suitable substitute should the president die in office. In fact the runner-up was the worst substitute, or nearly so, given that his partisan agenda would be the opposite of the winner’s. If Adams had died in office, the executive branch would have swung from ardent Federalist to devoted Republican.

This by itself might have occasioned a rewrite of the rules for electing presidents. But the election of 1800 revealed another problem with that part of Article II. Each of the Republican electors cast one of his two ballots for Jefferson and the other for Aaron Burr of New York. Burr was understood to be Jefferson’s understudy, but the tie threw the race into the House of Representatives, where the departing—because rejected at the polls—Federalist majority could determine which of the Republicans became president. The temptation to mischief was overwhelming. Some Federalists sought to make Burr president in exchange for promises of favors from him. Nothing came of the efforts except bad blood between Burr and Hamilton, the latter of whom persuaded Federalists in the House that Burr was evil while Jefferson was merely misguided. Jefferson became president, and nearly everyone decided that the system for electing presidents had to change.

The crucial revision was that while each elector would still have two ballots, one would be cast explicitly for president and the other for vice president. This would prevent a repeat of the Jefferson-Burr confusion.

Of no less importance, this change informally wrote parties into the Constitution. The Twelfth Amendment didn’t use that word, nor faction or other synonym. But the new structure of electoral voting was based on the premise that presidential candidates and vice presidential candidates would run as pairs—members of the same party.

No longer would the vice president be the disappointed runner-up, a man tempted to conspire against the president, as Jefferson did against Adams. No longer might the death of a president produce a dramatic swing in administration policy. The swing from Adams to Jefferson upon the latter’s 1801 inauguration was certainly dramatic, so dramatic that Jefferson called it the “revolution of 1800.” Yet it was a revolution mandated by voters in the 1800 elections. Had Adams died in office, the revolution might have been just as dramatic, but it would have been less convincing.

Article IV of the Constitution articulates the supremacy of the federal government over the states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” From this supremacy clause flows the authority of the federal government to restrain the states when they overstep.

But who restrains the federal government when it oversteps?

The president can restrain Congress by vetoing measures it passes. Congress can restrain the president by overriding vetoes, by a two-thirds majority in each house.

But what if the president and Congress together overstep? What if Congress passes and the president signs an unconstitutional law?

The Constitution provides no answer. Eventually the Supreme Court would assume the restraining role of declaring certain laws unconstitutional, but this part of the informal Constitution took a long time to be broadly accepted.

Thomas Jefferson and James Madison proposed another restraint.

In 1798 Congress passed four bills that became known as the Alien and Sedition Acts. The Federalist majority had taken umbrage at criticism from the Republicans and aimed to outlaw the worst of it. The Sedition Act declared “that if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States,” that person could be fined two thousand dollars and imprisoned for two years. John Adams, the Federalist president, signed the bills into law.

Republicans Jefferson and Madison judged the law a patent violation of the First Amendment. But they were in a bind, for if they said so, they might be prosecuted under that very law. Moreover, Jefferson was vice-president, having finished second to Adams in the 1796 election. In those days the vice president wasn’t considered part of the administration, given that he might be—as Jefferson was—the president’s chief opponent. Indeed, the vice president was more a member of the legislative branch, by virtue of his constitutionally mandated role as presiding officer of the Senate, than of the executive branch. But still, for a vice president to attack the president was unseemly.

So Jefferson and Madison disguised themselves as they proposed a remedy for unconstitutional legislation. Their plan was to persuade states to prevent the enforcement of the Sedition Act within the boundaries of those states. The word for this practice was nullification. Jefferson drafted a series of resolutions which the Kentucky legislature then approved. Madison did the same for Virginia.

Jefferson’s Kentucky resolutions began by characterizing the Union created by the Constitution: “Resolved, that the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that by a compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force.”

This was the compact theory of the Constitution. It held that the states had created the national government for limited purposes, and when the national government exceeded those purposes, its actions were null and void.

Who would decide when the national government had exceeded its authority? The states, said Jefferson. His resolutions continued: “That to this compact each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party; that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Jefferson concluded, “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” The alternative was chaos. “These and successive acts of the same character, unless arrested at the threshold, necessarily drive these states into revolution and blood, and will furnish new calumnies against republican government and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron.”

Neither Jefferson’s Kentucky resolutions nor Madison’s Virginia resolutions prevented the Sedition Act from being enforced in Pennsylvania against Benjamin Bache, a firebrand Republican editor who especially annoyed John Adams. Bache was arrested along with other critics of the administration. He died of yellow fever while awaiting trial.

The Sedition Act had the desired effect of deterring criticism of Adams and the Federalists, but it didn’t prevent their overthrow in the elections of 1800, which delivered control of Congress to the Republicans and the presidency to Jefferson. The act had been written to expire at the end of Adams’s term, conveniently allowing the Federalists to criticize the new Republican administration.

What didn’t expire was Jefferson’s theory of the Constitution as a compact among the states, which were equal parties to the national government in determining what the Constitution meant.

Madison had help in his reconsideration of federal power, in the person of Alexander Hamilton. George Washington made Hamilton the first secretary of the treasury, in which post Hamilton proceeded to run away with the administration and much of the government. Hamilton proposed to redeem the national debt at par, at a time when the debt, contracted during the Revolutionary War, was trading at dimes on the dollar. His proposal appeared a gift to speculators, yet he persuaded Congress to approve it. He then urged Congress to assume the debts the states had contracted. This was no gift to the states but a grab by the federal government, on the reasoning that creditors—that is, the wealthy—would shift their support from the states to the federal government. Congress again complied. Hamilton talked the legislature into approving a national bank, which would control the money supply and thereby the economy of the new nation.

Madison shook his head at Hamilton’s aggrandizement of the central government. Madison had wanted a government stronger than that permitted by the Articles of Confederation, but he didn’t want this. From his seat in the House of Representatives, he organized an anti-Hamilton opposition.

He formed an alliance with Thomas Jefferson, Washington’s secretary of state. Jefferson had been minister to France during the writing and ratifying of the Constitution. He approved of the federalist project, though never as ardently as Madison or Hamilton. He now disapproved of Hamilton’s growing power and the bigger government it created.

A philosophical divide opened within the Washington administration and in the country as a whole. Hamilton stood for strong government against weak government, for federal power against state power, for creditors against debtors, for city dwellers against farmers. Jefferson and Madison took the opposite side on all these questions.

In the debates at the Philadelphia convention, political parties had not been discussed. The possibility of factions occasionally came up and invariably prompted disapproval. The framers hoped their new country could be spared this bane of British politics. Indeed they often remarked that America must be spared factions, which would undermine the civic virtue on which the republic rested. Madison’s best-known contribution to the ratification debate, Federalist Paper Number 10, explained how factions would be neutralized by the federal structure of the new government.

Practice proved him wrong. Factions representing Hamilton’s philosophy, on one hand, and Jefferson’s and Madison’s, on the other, emerged during the early 1790s and showed no signs of diminishing.

These factions were what caused Washington to delay his retirement. Washington had intended to serve one four-year term and go home to Mount Vernon. But Hamilton urged him to stay, lest Jefferson’s faction take over the government. Jefferson made the same argument to Washington against Hamilton. Washington agreed to a second term.

The factionalism grew worse. In 1793 Britain and France went to war. Hamilton’s followers supported Britain while Jefferson’s sympathized with France.

Washington kept above the fray. He broke new constitutional ground by proclaiming neutrality for the United States in the European war. The Constitution gave the president no such authority. If anything, a declaration of no war should have come from Congress, to which the Constitution assigned authority for declarations of war. But no one disputed the prudence of neutrality, and no one made a fuss over how it was proclaimed.

Thus began the most consistent and long-lasting trend in American constitutional history: the enlargement of the powers of the president, typically at the expense of Congress.

During Washington’s second term, the competing factions became full-blown parties. Hamilton and Jefferson hired journalists to publish newspapers promoting their party views. In the pages of these papers, anonymous writers slung mud and hurled bombast at their opponents. Hamilton’s party was called the Federalists, Jefferson’s the Republicans.

Washington grew so disgusted by the partisanship that he resolved to get out of government. In September 1796 he announced that he would not accept a third term. His farewell statement urged Americans to set aside partisanship lest it destroy the republic. Washington also told Americans to stay out of the affairs of Europe.

Americans heeded Washington’s second admonition but ignored his first. Partisanship grew ranker after Washington left office.

The mere fact of his leaving had constitutional significance. Washington’s departure after two terms set a precedent that became part of the informal Constitution. Not for a century-and-a-half would any president serve more than two terms. As soon as one—Franklin Roosevelt—did, the informal two-term limit was formalized in the Twenty-second Amendment.

James Madison understood how to make virtue of necessity. A bill of rights had been the price of ratification of the Constitution, but the more he thought about it, the more he deemed a bill a good idea.

What became the First Amendment dealt with the most important rights: to freedom of religion, speech, press, assembly, petition. Madison drew on English history and the experience of the thirteen states since independence. These rights were essential to the success of republican government.

Yet Madison made clear he was binding only the national government. “Congress shall make no law” infringing said rights, it declared. If the states wanted to privilege or punish a religion, they could. Several did. A century would pass before the Bill of Rights generally applied to the states.

The Second Amendment was dear to the hearts of Americans who remembered how the war for independence had begun: with a British attempt to seize the weapons of Massachusetts militia at Lexington and Concord. The Minutemen rebuffed the attempt and in the process put America on the path to freedom. The Minutemen or their like might be needed in the future. “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” the Second Amendment said.

The Third Amendment forbade compulsory quartering of soldiers in civilian homes during peacetime. This too reflected a painful memory from the revolutionary era, when British troops were imposed upon Boston civilians. So thoroughly did this amendment reflect the abiding will of Americans that it has rarely given rise to litigation. The government simply didn’t do what it was forbidden from doing.

The Fourth Amendment harked back to the English maxim that a man’s home is his castle. In placing strict limits on searches and seizures, it made law enforcement authorities demonstrate probable cause in invading individuals’ privacy.

The Fifth Amendment was similarly procedural. Indictment by a grand jury was required for the prosecution of major crimes. Individuals could not be made to testify against themselves. No one could be tried twice for the same crime. No one could be “deprived of life, liberty or property without due process of law.”

The Sixth Amendment stated that criminal trials must be “speedy and public,” each decided by an “impartial jury” in the state and district where the crime took place. Under British colonial rule, persons accused of crimes in America were sometimes tried in Britain, to their great expense, distress and legal disadvantage. Defendants must be allowed to confront witnesses against them, to summon witnesses in their favor, and to be represented by legal counsel.

The Seventh Amendment extended the guarantee of jury trials to non-trivial civil suits.

The Eighth Amendment secured Americans against excessive bail and fines and against “cruel and unusual punishment.” Americans mustn’t be impoverished by capricious law enforcement, nor could they be tortured under the guise of law.

The Ninth Amendment was Madison’s way of rebutting the argument he himself had made in originally resisting a bill of rights. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” it said.

The Tenth Amendment broadened the same principle: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Madison proposed twelve amendments to Congress. The lawmakers, by two-thirds majority in each house, accepted ten, which were referred to the states for ratification. The required three-quarters of the states approved by late 1791, and the ten became known as the Bill of Rights.

The two rejected amendments, which Madison had placed at the head of his list, proposed a formula for increasing the number of representatives in the House of Representatives as the population grew, and prevented Congress from increasing its pay without an intervening election. The first of these matters was subsequently dealt with by statute. The second was adopted two centuries later as the Twenty-seventh Amendment.

Madison assumed his amendments would be inserted into the Constitution in various places according to the subjects they dealt with. The idea of a free-standing list of what might be seen as corrections didn’t appeal to him. Yet he was persuaded that a list at the end of the original text made historical and rhetorical sense.

Madison had been the original federalist, the leading advocate of a stronger central government. By the time he finished specifying what that government must not do, he had come to appreciate that greater power at the center wasn’t always better.

On April 30, 1789, George Washington took the oath of office as the first president under the new Constitution. His election had been as easy as expected, with every elector casting one of his two ballots for Washington. The electors’ second ballots were divided among several candidates, of whom John Adams received the most. For his second-place finish, Adams became vice president.

The members of the new Congress had been sworn in earlier. They had to count and confirm the ballots of the electors for president. The representatives in the House of Representatives were chosen by voters in their districts in the states. Virginia had ten representatives in the first Congress, the most of any state. Rhode Island and Delaware each had one representative. The senators, two per state, were selected by the state legislatures.

The seat of the new government was New York City. The federal district permitted by the Constitution had to be decided upon. Argument was expected. The national government was modest in size, consisting of not quite a hundred members of the legislative branch and two members, the president and vice president, of the executive. The Constitution authorized the judicial branch but the legislature had to create it. Congress would hire staff and the president appoint a cabinet. The impact of the government’s presence on the New York economy wasn’t large.

More important was the convenience of the national capital to the different sections of the country. New Englanders wanted a northern capital, Virginians and Carolinians a southern. Pennsyvlanians would have been happy for Philadelphia to continue as capital. This was what the argument would be about.

The Constitution specified the president’s oath of office. “I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States,” Washington said.

The Constitution made no mention of further remarks by the president. Yet Washington thought he ought to say something. In doing so he commenced a practice that would continue: of presidents, members of Congress, judges and others informally adding to the Constitution by actions that caught on. The first informal addition was the inaugural address.

Future presidents would address their remarks to the nation as a whole, and at times the world. Washington confined himself to his immediate audience, whom he styled “Fellow-Citizens of the Senate and of the House of Representatives.” The Constitution separated the executive and legislative branches, but it expected the president and the legislators to communicate. In particular it directed the president to “recommend to their consideration such measures as he shall judge necessary and expedient.” Washington acknowledged this duty but said he would withhold recommendations at present.

He commended all involved on the launch of the new government. They had done well to reach this point. They had much more to do.

Washington concluded his brief remarks with something else that would become part of the informal Constitution: an invocation of Providence. Presidents varied the terminology over time. “The benign Parent of the Human Race” was Washington’s formulation. Nearly every president would ask God’s blessing on the American experiment in self-government. In Washington’s case he cited the help God had given in the writing of the Constitution, and he hoped the help would continue. He proffered “humble supplication that since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquility and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this government must depend.”

The inaugural day culminated in something else that would become part of the informal Constitution: a celebration of the incoming administration. Nothing like it had characterized the Articles of Confederation, not least because that first constitution created nothing like the Constitution’s presidency. The fireworks that filled the sky over New York expressed enthusiasm for both Washington and the Constitution. With such an illustrious captain, the new voyage of the ship of state could not but be brilliant.

On September 17, 1787, the delegates who approved the Constitution affixed their signatures. George Washington as president of the convention sent a copy to each state with a cover letter urging swift ratification.

The states summoned their own conventions to examine the new charter and decide. Delaware, Pennsylvania and New Jersey ratified before the end of 1787. Georgia, Connecticut, Massachusetts, Maryland, South Carolina and New Hampshire followed in the first half of 1788. This provided the nine states the Constitution required for it to take effect among them. But Virginia and New York, respectively the largest state and the one most strategically located, were still making up their minds. If either state refused, the Constitution would face severe credibility problems.

James Madison took charge of ratification in Virginia and Alexander Hamilton in New York. These two, with help from New York’s John Jay, produced a series of essays explaining the merits of the Constitution and its advantages over the Articles of Confederation. The essays were published pseudonymously, all signed by “Publius.” Collectively they became known as the Federalist Papers, and the supporters of ratification as Federalists.

The essence of the Federalist argument was that the government of the United States needed to be strengthened, both absolutely and vis a vis the states. It needed to be the government of a union rather than the coordinating committee of a confederation. It needed to be able to touch the lives of individuals directly, in such matters as taxation, rather than through their state governments only. It needed to be able to present one face and voice to the world in matters of trade, diplomacy and, when necessary, war.

Skeptics, called Antifederalists, weren’t persuaded. They pointed out that the American Revolution had been provoked by an excessively powerful (British) government. To the Federalists’ insistence on the need for order, the Antifederalists countered that order mustn’t come at the expense of liberty. The Antifederalists said that when government was necessary, it should be state government, with few exceptions. State governments were near at hand and straightforward to monitor. The national government would be distant and difficult to control.

The Antifederalists especially objected to the absence of a bill of rights. The new Constitution said what the government could do, but it did not say what the government could not do. For centuries running back to the Magna Carta of 1215, Englishmen had struggled to rein in government. The constitutions of the states had bills of rights: sections of the constitutions forbidding state governments from abridging freedom of speech, from engaging in unwarranted searches, from denying jury trials and from otherwise usurping the rights of the people. The new Constitution should offer similar guarantees of liberty.

Madison rejoined that the existence of the state bills of rights made a national bill of rights unnecessary. Moreover, the new national government would have only the powers specified by positive grant in the Constitution. None of these powers permitted the violation of personal rights.

The Antifederalists were unpersuaded. Governments had a tendency to grow, they said. Anyway, if the national government wasn’t intended to infringe on individual rights, what harm would come from locking this down in writing?

Madison still resisted. He didn’t want to have to call the convention back into session to make the changes the Antifederalists demanded. The delay would kill the momentum toward ratification. He said it would be counterproductive to list the things the Congress could not do, because no list could be comprehensive and whatever was not on the list would be presumed to be within Congress’s power.

The Antifederalists proposed conditional ratification. They would vote in favor of the Constitution on condition that a bill of rights be added at first opportunity.

Madison and Hamilton publicly rejected conditional ratification as worse than no ratification. The states ratifying conditionally would be the judges of whether the bill of rights was satisfactory, and the whole ratification battle would have to be refought. No, they said, the states must ratify unconditionally or not at all.

In private, though, Madison offered assurance that a bill of rights would be forthcoming shortly after the new government commenced operation. He did so in the interest of getting the votes ratification required. He did so, as well, with the design of being the one drafting the bill of rights.

Upon Madison’s tacit assurance, Virginia and New York voted in favor of ratification. North Carolina and Rhode, the last of the thirteen, made it unanimous.

The deed was done. The coup was accomplished. The Congress of the Articles of Confederation acknowledged defeat and disbanded.

Two gaps caused more trouble than the rest combined. The first had to do with the permanence of the government the Constitution would create. More precisely, would states that ratified the Constitution be forever bound by that decision? Or would they be allowed to leave the union the Constitution created?

The matter wasn’t debated at Philadelphia, nor was it mentioned in the finished Constitution. It seems too important to simply have been overlooked. Why the silence?

Partly because the delegates had no idea how long their creation would last. The Articles of Confederation weren’t a decade old, and the Philadelphians were doing their best to overthrow them. If the new charter survived a generation, it would be a brilliant success. The future beyond that would have to look out for itself.

Partly because the delegates didn’t want to jinx their work. They were about to ask Americans to endorse a government far more powerful than the current one. If they preceded the ask with a proclamation that a positive decision would be irrevocable for all time to come, potential approvers might get nervous and balk. For this reason the delegates declined to say that ratification was forever. The Articles were, in full, the “Articles of Confederation and Perpetual Union,” but “perpetual” appeared nowhere in the document that would replace them.

At the same time, the delegates refused to say that the new Constitution wasn’t forever. They could have included an exit clause. But they didn’t. Prenuptial clauses weren’t part of marital law in those days, but the delegates didn’t want to threaten the glow of good feeling the way prenups can.

So they kept silent. In doing so, they guaranteed decades of work for constitutional lawyers. The savviest ones, like Daniel Webster, worked both sides of the case.

As for slavery, the silence of the Philadelphia convention reflected an understanding that the practice of bound labor was beyond their purview. For a century and a half, slavery had been the law of the British empire. Provincial governments had no say in the matter. Independence put responsibility for slavery upon the thirteen states. When Pennsylvania in 1780 legislated an end to slavery in the state, the Pennsylvanians did not ask the permission of the Continental Congress or of any of the other states. Seven years later, slavery remained the responsibility of the states alone.

By no means did all the delegates deem slavery a remediable sin. Like war and pestilence, it was a misfortune of life. No one wanted to be a slave, any more than one wanted to contract yellow fever. But bad things happen here below.

Many of the delegates judged that slavery contradicted the values of republicanism. More than a few had previously complained that British taxes would make slaves out of the American colonists if America didn’t become independent. For Americans now to enslave Africans and their descendants smacked of hypocrisy.

Fortunately, slavery seemed to be less essential to the economies of the states than it had been. Tobacco planters discovered that their crop wore out the soil. Some, like George Washington, were getting out of tobacco and into crops that were less labor intensive and therefore less dependent on slavery. Washington was one who believed slavery demeaned republican virtue and who looked forward to the day of its demise.

But for the Philadelphians, all this was neither here nor there. Slavery was the responsibility of the states. None of the delegates broached a blanket ban on the institution.

The slave trade was a different matter. Not the internal trade—a desire to eliminate barriers to trade between states was one of the original reasons for calling the convention. A ban on trade between states, even in slaves, would fly in the face of this first principle.

The import of slaves from abroad was a different matter. It was the most brutal and distasteful aspect of slavery. And it was unnecessary, in that slaves reproduced in America in a way they didn’t in the West Indies and South America. A ban on slave imports would not materially handicap American planters. The delegates approved such a ban, delayed for twenty years to allow time for adjustment, without much debate.

James Madison was one of the Virginia slave owners who looked forward to a day when slavery would be legislated out of existence, state by state. As the moving spirit of the Philadelphia convention, he felt peculiarly responsible for what it produced. He insisted that the Constitution contain no explicit mention of “slaves” or “slavery” but employ such euphemisms as “other persons.” Having gone to great trouble to write the Constitution, he didn’t want to have to come back and rewrite it.

When the convention concluded in September 1787, the unanswered questions regarding the permanence of membership in the Union and the discrepancy between republican values and slavery occasioned few worries among the delegates. They were relieved to have accomplished what they accomplished. They hoped their work would be approved by their fellow Americans. Any remaining loose ends were for others to tie up.

Courts couldn’t create themselves nor judges appoint themselves. “The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish.” Thus the convention created the Supreme Court and left to Congress to bring other federal courts into existence. As for the judges, they would be nominated by the president and confirmed by the Senate.

Once sworn in, the judges were on their own. “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.” The judges couldn’t be fired for rendering unpopular verdicts nor have their salaries reduced or withheld. Withholding salaries was a trick colonial assemblies had used against royal governors they didn’t like. The convention didn’t want the tactic used against federal judges.

Federal courts would have original jurisdiction over cases arising under federal law, cases involving the United States government, and disputes between states. All criminal trials before the federal courts would be by jury and would take place in the states where the crimes were committed. This last point reflected the anger of the American colonists at being tried by courts in England for actions committed in America. Thomas Jefferson decried the practice in the Declaration of Independence.

While lower federal courts would be the trial courts for the kinds of cases named, the Supreme Court would be primarily an appeals court. The important exceptions were cases involving ambassadors and cases to which states were parties. In these cases the Supreme Court would be the trial court.

The states had their own criminal codes, and the delegates at Philadelphia assumed most crimes would be prosecuted under state laws. Congress would write such federal criminal laws as it deemed necessary. The one exception was treason, which the Philadelphia convention defined. “Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort.”

English history was rife with abuses of the concept of treason. One-time favorites who fell out with the monarch found themselves charged with treason and imprisoned or executed. The delegates at Philadelphia wanted nothing like this for the American republic. Not only was treason narrowly circumscribed but the standard of proof was set high. “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” No secret trials, no extorted confessions, no verdicts dependent on single witnesses.

Unsaid but assumed was that America’s courts would do their work in the tradition of English common law. This meant that though the courts created by the Constitution and by Congress pursuant to the Constitution would be new, they would inherit a body of decisions and practices that stretched back centuries.

Congress would have a clean slate when it met for the first time. The first president would establish precedents almost every day during his first term. The legislative and executive branches of the new government were radical experiments in republicanism. No one could be quite sure what these branches would do.

The judicial branch, by contrast, was profoundly conservative. Any change the judges introduced would have to overcome the collective judgment of generations of their common-law predecessors.

Their coup against the Articles of Confederation made many of the delegates at Philadelphia nervous. Amid their anxiety, the conservatism of the courts afforded comfort.

The Philadelphia convention began with the principle that the executive must be independent of the legislature. He would not be a member of the legislature and would be chosen by a different mechanism. And he would be singular. Some of the states had executive councils, which diluted the energy of the executive in the way committees generally do.

Just what the mechanism should be for choosing the executive, whom the delegates dubbed president, wasn’t obvious. It didn’t occur to them that the American people should choose the president. Most of them didn’t think in terms of an American people. There were New Yorkers and Pennsylvanians but not Americans. Not yet.

Moreover the delegates didn’t trust the people to be able to judge the qualifications of competing candidates. Carolinians might know about candidates from the Carolinas, but what would they know about men from Massachusetts?

To solve the second problem the delegates resorted to the idea of representation that had long motivated parliaments and assemblies. Presidents would be chosen by special representatives, called electors, who would make it their business to know the qualifications of candidates.

How would the electors be chosen? The Philadelphia delegates left this to the states to decide, each for itself. The most likely course would be for the state legislatures to appoint electors. But if the states wanted to hold state conventions for choosing electors, or let the voters of the states vote for electors, that would be their privilege.

Nothing like this had been done in America. No one knew how it would play out. The delegates decided to give each elector two ballots, to be cast for two different candidates. If any candidate received a majority of the number of electors, he would be president. If no candidate cleared that threshold, the race would go to the House of Representatives, which would choose a winner.

This system promised a way of narrowing broad fields of candidates. Delegates seemed to think electors would cast one ballot for the favorites of their particular states. The second ballots would go to candidates with broader support. The winner would probably come from this second pool.

How would the electors be apportioned among the states? The delegates were loath to refight the battle over representation in Congress. They did the easiest thing, adapting the formula they’d devised for Congress to the apportionment of electors. Each state received the same number of electors as the number of its senators plus the number of its representatives. Big states got more electors than small states by virtue of their larger populations. But not as many more as population alone would have dictated, since big states and small states alike got two electors corresponding to their two senators.

How long should the president serve? Alexander Hamilton thought a life term most desirable. A president who didn’t have to worry about reelection could focus on the national interest.

This sounded too much like an elected king for most of the delegates. They valued being able to hold a president to account. The convention settled on four-year terms with no limit on reelection.

What should be the powers of the president?

By this stage of the convention the delegates had been sweating for months through the Philadelphia summer. They were exhausted. Some had run out of money for hotel and meals. They wanted to be done and go home.

They merely sketched the president’s duties. He would serve as commander in chief of the armed forces. He would nominate ambassadors, judges and other federal officers, to be approved by the Senate. He would negotiate treaties, subject to ratification by two thirds of the Senate. He would report to Congress from time to time on the state of the Union. He could grant pardons and reprieves.

He could veto measures approved by Congress, but two thirds of each house could override.

He would, per his sworn oath, “faithfully execute” his office and “preserve, protect and defend the Constitution.”

If he failed egregiously to do so, he could be impeached by a majority of the House of Representatives and removed from office upon conviction by two thirds of the Senate.

The description of the president’s powers and duties was abbreviated by comparison with that of Congress. This reflected the weariness of the delegates but also their belief and desire that the legislative branch would be the driving force in the new government. The executive would merely execute the will of the legislature.

Finally, the short treatment of the presidency reflected the delegates’ faith in George Washington, whom all hoped and supposed would be the first president. When they had doubts about what the president should be or do, they looked across the meeting room to where the general was calmly sitting and thought: He’ll figure it out.

The Philadelphia convention got down to serious business in crafting what came to be section 8 of article 1. “The Congress shall have the power to lay and collect taxes, duties, imposts and excises,” it said. Lack of power over money had been the bane of the Congress until now. The states jealously reserved the taxing power to themselves. The very first of the enumerated powers in the new constitution remedied this deficiency.

The Congress would have the power “to pay the debts and provide for the common defense and general welfare of the United States.” The Continental Congress had incurred debts to fund the Revolutionary War. These debts had fallen in value to dimes on dollars, reflecting lack of confidence in the ability of the national government to repay them. The Philadelphia framers would bolster confidence by establishing federal authority to pay the debts. The Congress of the Constitution would be able to fund future defense and other programs that conduced to the general welfare. To this end it would have the power “to borrow money on the credit of the United States.”

The Congress would have the power “to regulate commerce with foreign Nations and among the several states.” The framers worried that foreign nations would play one state against another in trade. This clause, and the underlying premise that federal law would trump state law in areas where they overlapped, precluded that. Also precluded were barriers to trade erected by one state against other states. The new constitution, if adopted, would create a single American market for trade. No one knew at the time how important this would be. It would do more than anything else to make the United States the economic juggernaut it became.

Congress would have the power “to coin money, regulate the value thereof, and of foreign coin.” A hodgepodge of money had vexed commerce since colonial days. Merchants and individuals resorted to paper currency, bank drafts, promissory notes and coins of foreign countries to conduct their business. Congress would now be able to create an American system of coins, presumably of gold and possibly silver. Paper currency, with which Americans had a bad experience during the Revolutionary War, was not immediately envisioned.

Congress would have the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Copyright and patents would be a federal responsibility.

Congress would have the power “to declare war . . . to raise and support armies . . . to provide and maintain a navy . . . to provide for calling forth the militia to execute the laws of the nations, suppress insurrections and repel invasions.” War would be the responsibility of the national government, not of the states. A permanent army was not anticipated, hence the wording about raising armies. And hence the reliance on militias, the parttime armies of the states. The Shays rebellion of the previous several months had demonstrated the need to suppress insurrections.

Congress would have the power to create a special district that would “become the seat of government of the United States.” During the war, when the Continental Congress had met at Philadelphia and restive soldiers had marched into the city to pressure the legislature to pay them, the governor of Pennsylvania refused to summon the Pennsylvania militia. The legislators were forced to flee. A special district, governed by Congress itself, would prevent a recurrence of this mortification.

Finally, Congress would have the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States.” Said foregoing powers, the enumerated powers, were narrow and specific. This last power was broad and open-ended. Tucked away at the end of section 8, it might escape immediate notice of some perusers of the Constitution.

But this clause—the necessary-and-proper clause—would provoke more controversy than any other clause in the Constitution. It seemed to be at odds with itself. “Necessary” sounded restrictive. “Proper” was more permissive. Many of the delegates at Philadelphia were lawyers. More than a few must have imagined how they would argue cases turning on this clause. Generations of lawyers found work doing so.

Besides delineating the powers of Congress, section 8 of article 1 made clear that the center of gravity in the new government would lie in the legislative branch. Congress was America’s parliament, and centuries of struggle in England had established the supremacy of Parliament. Americans had thrown off British rule, but they hadn’t rejected this feature of British government. Their proposed Constitution affirmed it.