How History Made The Constitution


For all the language seeking to assure a legislative process free from executive coercion, the Constitution expresses even more strongly the widespread American fear that a national legislative body acting either by itself or in concert with a President turned Cromwell would destroy individual liberties.

A hint that the framers feared legislative tyranny more than executive despotism lies in the placement, within the constitutional text, of the great guarantees. The prohibition of religious tests appears in Article VI, the Constitution’s statement of national supremacy, and the jury right and the limitation of treason appear in the judiciary Article III. All the rest come in the legislative Article I. Oddly enough, nothing in the presidential Article II expressly restricts the executive.


The focus on a potentially mischievous legislature makes sense, considering the governmental format the Constitution created. Although they sharply separated the executive branch from the legislative, and although they gave the President immense powers—in the eighteenth century only monarchs simultaneously commanded both the army and the navy—the framers established an executive totally dependent on the legislature for everything but the definition of his office and the right to hold it.

No constitution could gain acceptance unless it addressed the widespread fear, well represented among the delegates, that a strong central government would permit the swift eradication of the states themselves, as well as of every citizen’s personal liberty. “My principal objection,” said George Mason of Virginia (who ultimately refused to sign), “is, that the Confederation is converted to one general consolidated government, one of the worst curses that can possibly befall a nation....The question then will be, whether a consolidated government can preserve the freedom and secure the great rights of the people.”

The instrument best calculated to effect this cataclysm was the standing army. “In despotic governments,” wrote the anti-Federalist “Brutus” (who was Robert Yates, a renegade New York delegate to the convention), standing armies “have always proved the destruction of liberty, and are abhorrent to the spirit of a free republic.”

Thomas Jefferson, no enemy to the Constitution as it emerged from the convention, nonetheless wrote to Madison from Paris bemoaning “the omission of a bill of rights providing clearly and without the aid of sophisms, for [among other things] protection against standing armies.”

English seventeenth-century history, the pre-Revolutionary American pamphlets, and that emotionally overplayed street scuffle called the Boston Massacre had by 1787 made the very concept of a professional army the most widely perceived social and political threat. Charles II had “kept in pay” an army of five thousand; James II had (so it was argued) raised the number to thirty thousand. Accurate or not, the perception was ineradicable. “The President, in the field, at the head of his army,” cried Patrick Henry, “can prescribe the terms on which he shall reign master....” Even Madison agreed that “as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution....”

With habeas corpus, liberty’s most important guarantee, no one could be illegally jailed.

Yet the reality of America’s situation, surrounded as it was by possessions of the three greatest European powers, demanded military preparedness to a degree more reliable than the individual states’ militias. “Preparations for war are generally made in peace,” New Jersey’s Jonathan Dayton, the youngest member, told the convention, “and a standing force of some sort may, for aught we know, become unavoidable.”

The solution the delegates reached was typical of the many compromises that underlay the final draft: Congress could “raise and support Armies,” but no military appropriation could cover a term longer than two years. Thus every Congress would have an opportunity to bring the military to fiscal heel.

The tenor of their debates and the text of the document they produced clearly show the framers to have regarded the Constitution itself as limiting congressional power. Recognizing the probable popular demand for a bill of rights, they nonetheless determined not to include prohibitory language on those matters that they believed Congress constitutionally incapable of legislating.

Certain areas trenching on individual liberty could, however, conceivably lie within Congress’s discretion; as for those, the framers, in the historian Irving Brant’s apt formulation, “created a partial Bill of Rights.”

Foremost among these was the question of habeas corpus. Meaning in Latin “bring the body,” habeas corpus was a writ (a court order) commanding anyone who held someone else in custody to bring the confined person to court, where a judge could determine the legality of the confinement.

Although the writ had been a part of English law for centuries, its application had not been smooth. In 1627, for example, an English court ruled that a custodian could legally justify the confinement by showing that he held the prisoner at the king’s special command.