“This Critical Period”David S. TanenhausEditor, Law and History Reviewhttp://journals.cambridge.org/LHR

Professor and Acting ChairHistory Department at UNLV4505 Maryland ParkwayBox 455020Las Vegas, Nevada 89154-5020(o) (702) 895-3549(f) (702) 895-1782e-mail: david.tanenhaus@unlv.edu Backstory

John Quincy Adams, c. 1787“Periodization is the essential contribution of historians to the understanding of change.” Peter Stearns, “History and Policy Analysis: Toward Maturity,” Public Historian 4 (1982): 14.

Timing Matters“The creation of a separate American nation occurred suddenly rather than gradually, in revolutionary rather than evolutionary fashion, the decisive events that shaped the political ideas and institutions of the emerging state all taking place with dynamic intensity during the last quarter of the eighteenth century. No one present at the start knew how it would turn out in the end. What in retrospect has the look of a foreordained unfolding of God’s will was in reality an improvisational affair in which sheer chance, pure luck—both good and bad—and specific decisions made in the crucible of specific military and political crises determined the outcome.”

Joseph Ellis, Founding Brothers, 5.

The Significance of the Revolutionary Generation

“Mostly male, all white, this collection of public figures was hardly typical of the population as a whole; nor was it, on the other hand, a political elite like anything that existed in England or Europe. All of its members, not just those like Benjamin Franklin and Alexander Hamilton with famously impoverished origins, would have languished in obscurity in England or France. The pressures and exigencies generated by the American Revolution called out and gathered together their talents; no titled and hereditary aristocracy was in place to block their ascent; and no full-blown democratic culture had yet emerged to dull their elitist edge. They were America’s first and, in many respects, its only natural aristocracy.”

Joseph Ellis, Founding Brothers, 13.

The Declaration of Independence of 1776 is best characterized as

A. RadicalB. Conservative

The U.S. Constitution of 1787 is best characterized as

A. RadicalB. Conservative

Three Overarching Historical Questions

Why did leading Americans draft and propose that the American people adopt a new Constitution in 1787?

Was this Constitution the fulfillment of the American Revolution or a betrayal of the spirit of 1776?

How should we, as twenty-first century Americans, interpret the Constitution of 1787?

"It will be considered, I believe, as a most extraordinary epoch in the history of mankind, that in a few years there should be so essential a change in the minds of men. 'Tis really astonishing that the same people, who have just emerged from a long and cruel war in defence [sic] of liberty should now agree to fix an elective despotism upon themselves and their posterity.“

– Richard Henry Lee, 1788

The Problem of the Two Foundings

“The incompatibility of these two foundings is reflected in the divisive character of the scholarship on the latter. Critics of the Constitution, then and now, have condemned it as a betrayal of the core principles of the American Revolution, an American version of France’s Thermidorian reaction.”– Joseph Ellis, Founding Brothers, 9.

Which is the most important turning point in early American history?

A. 1776B. 1783C. 1787-1788D. 1800

A Painful Choice

“As he approached his destination, Washington faced a painful choice: to remain loyal to his long-suffering troops or honor the rule of law.”

Richard Beeman, Plain, Honest Men, 4.

The Newburgh Address (March 15, 1783)

“Let me entreat you, gentlemen, on your part, not to take any measures which, viewed in the calm light of reason, will lessen the dignity and sully the glory you have hitherto maintained; let me request you to rely on the plighted faith of your country, and place a full confidence in the purity of the intentions of Congress. . . .You will, by the dignity of your conduct afford occasion for posterity to say, when speaking of the glorious example you have exhibited to mankind, had this day been wanting, the world had never seen the last stage of perfection of which human nature is capable of attaining.”

Critical Turning Points in American History

“If one is looking for critical turning points in American history, times when the future direction of the republic might have altered course, Washington’s performance at Newburgh, the Constitutional Convention, Lincoln’s Gettysburg Address, and the subsequent passage of the constitutional amendments eradicating slavery from the American constitution stand out as decisive.”

A different course. . .“Given the financial disarray and civil disorder represented by the discontent of the soldiers at Newburgh, Washington could have convinced himself that military solutions to civil political problems were the best course of action, as did many leaders in the revolutions of Latin America in the century to come. Some, like Simon Bolivar in Venezuela, Peru, and Columbia, did so reluctantly. Other like Santa Anna in Mexico or Bernardo O’Higgins in Chile, did so more eagerly. All of these countries have lived with a tradition of military intrusion in the affairs of their governments ever since.”

Richard Beeman, Plain, Honest Men, 6-7.

Independence HallThe Setting for Two American Revolutions in Government, 1776 and 1787

Declaring Independence

“ That these Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most effectual measures for forming foreign alliances.

That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation.”

– Resolutions introduced by Richard Henry Lee, June 7, 1776

Thomas Jefferson (VA), John Adams (MA), Benjamin Franklin (PA), Roger Sherman (CT ) and Robert Livingston (NY)

From Revolution to the “Critical Period,” 1776-1786

Building Local Government: State ConstitutionsWritten Constitutions, unlike the British Constitution which was unwrittenDid not create strong executive branchesEmphasized the sovereignty of the people

Virginia Constitution of 1776

“That all men are by nature equally free and independent, and have certain inherent rights of which, when they enter into a state of society, they cannot, by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”

Securing these Principles

1. Bill of Rights2. Invest most of the power in the legislature branch3. Weak executive4. Emphasize virtue

“No free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”

Virtue or Corruption?Assessing the State of the State Governments in the 1780s1. Quality of laws being passed, especially paper currency, debtor relief, and ex post facto laws2. Quantity of law being passed3. Quality of office-holders“The short period of independency has filled as many pages [with laws] as the century which proceeded it. We daily see laws repealed or suspended, before any trial can have been made of their merits, and even before a knowledge of them can have reached the remoter districts within which they were to operate.”– James Madison, 1787

The Stile of this Confederacy shall be “The United States of America.”

What is a confederation?How do we read “The United States of America”?

Article IIEach state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

Article III

The said States hereby severally enter in a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The structure of the federal government

1. “In determining questions in the united States, in Congress assembled, each State shall have one vote” (Article V)

2. Exclusive right and power of: determining peace or war, entering into treaties and alliance, border disputes, coinage, post officers, assume continental debt.

Making ChangesArticle XIIIEvery State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.

Three Fatal Flaws

1. No Power of the Purse—May Default on the Nation’s War Debt

2.Unanimous Consent to Amend3.No Chief Executive

The Critical Period, c. 1786

• Shay’s Rebellion• “We have errors to

correct.”– George Washington

The Price of Failure

“The consequences will be, that the fairest experiment ever tried in human affairs will miscarry; and that a REVOLUTION which had revived the hopes of good men and promised an opening to better times, will become a discouragement to all future efforts in favour of liberty, and prove only an opening to a new scene of human degeneracy and misery.“• Richard Price, 1787

Toward PhiladelphiaAnnapolis Convention (September 1786)

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.

--February 21, 1787, Resolution of Congress

In 1776, and in 1787“In 1776, most Americans, embarking on a perilous war against a powerful Empire, believed that the greatest threat to liberty was to be found in the overriding power of a distant, centralized government.”

“The men responsible for initiating the call for a constitutional convention, their hopes and fears shaped by the challenges and frustrations of fighting a long, costly war and of securing peace and public order at home, had come to believe that the continental government’s lack of ‘energy’ posed an equally formidable threat to liberty. As they prepared to meet in the Pennsylvania State House—the same building in which Americans had declared their independence in 1776—they were contemplating a second revolution in American government.”

Richard Beeman, Plain, Honest Men, 21.

Looking Forward

The Writing and Ratifying of the ConstitutionFrom the Bill of Rights to the Alien and Sedition ActsThe Significance of the Marshall Court