1
This Critical Period

• David S. TanenhausEditor, Law and History
  Reviewhttp//journals.cambridge.org/LHR
• Professor and Acting Chair
• History Department at UNLV
• 4505 Maryland Parkway
• Box 455020
• Las Vegas, Nevada 89154-5020
• (o) [phone](f) [phone]e-mail
  david.tanenhaus_at_unlv.edu

Backstory
2
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.

3
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 Gods will was in
  reality an improvisational affair in which sheer
  chance, pure luckboth good and badand specific
  decisions made in the crucible of specific
  military and political crises determined the
  outcome.
• Joseph Ellis, Founding Brothers, 5.

4
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 Americas first and, in many
  respects, its only natural aristocracy.
• Joseph Ellis, Founding Brothers, 13.

5
The Declaration of Independence of 1776 is best
characterized as

1. Radical
2. Conservative

6
The U.S. Constitution of 1787 is best
characterized as

1. Radical
2. Conservative

7
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

8
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 Frances
  Thermidorian reaction.
• Joseph Ellis, Founding Brothers, 9.

9
Which is the most important turning point in
early American history?

1. 1776
2. 1783
3. 1787-1788
4. 1800

10
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.

11
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.

12
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,
  Washingtons performance at Newburgh, the
  Constitutional Convention, Lincolns Gettysburg
  Address, and the subsequent passage of the
  constitutional amendments eradicating slavery
  from the American constitution stand out as
  decisive.

13
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 OHiggins 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.

14
Independence Hall

• The Setting for Two American Revolutions in
  Government, 1776 and 1787

15
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)
16
From Revolution to the Critical Period,
1776-1786

• Building Local Government State Constitutions
• Written Constitutions, unlike the British
  Constitution which was unwritten
• Did not create strong executive branches
• Emphasized the sovereignty of the people

17
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.

18
Securing these Principles

• 1. Bill of Rights
• 2. Invest most of the power in the legislature
  branch
• 3. Weak executive
• 4. 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.

19
Virtue or Corruption?

• Assessing the State of the State Governments in
  the 1780s
• 1. Quality of laws being passed, especially
  paper currency, debtor relief, and ex post facto
  laws
• 2. Quantity of law being passed
• 3. 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

20
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 II
• Each 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.

21
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.

22
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.

23
Making Changes

• Article XIII
• Every 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.

24
Three Fatal Flaws

• 1. No Power of the PurseMay Default on the
  Nations War Debt
• Unanimous Consent to Amend
• No Chief Executive

25
The Critical Period, c. 1786

• Shays Rebellion
• We have errors to correct.
• George Washington

26
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

27
Toward Philadelphia

• Annapolis 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

28
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 governments lack of
  energy posed an equally formidable threat to
  liberty. As they prepared to meet in the
  Pennsylvania State Housethe same building in
  which Americans had declared their independence
  in 1776they were contemplating a second
  revolution in American government.
• Richard Beeman, Plain, Honest Men, 21.

29
Looking Forward

• The Writing and Ratifying of the Constitution
• From the Bill of Rights to the Alien and Sedition
  Acts
• The Significance of the Marshall Court