Founding fathers: the men who made America

Before the guns had fallen silent after the American War of Independence and a republic declared, the Articles of Confederation and Perpetual Union had been drawn up, effectively forming the newly minted United States’ first constitution. Compiled between mid-1776 and late 1777, and ratified over time by the 13 states, these articles actually bequeathed little authority to central government, as represented by the Continental Congress, a gathering of representatives from each of the former colonies. This executive could make decisions but, with each decision requiring all 13 state legislatures to agree to them before they could become law, it was rather a toothless body.

More bite was needed; national unity was in short supply. None of the states made all of the payments requested of them; some, such as Connecticut, made none. And when it came to defending itself, the new country was largely powerless, its troops chronically underfunded and underpowered against the might of any potentially aggressive colonial power. The entire republican project – deemed highly radical when set against the dusty regimes of Old Europe – was in danger of collapsing in on itself. Intervention was required.

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War of words

In February 1787, the federal legislature – the Congress of the Confederation – commissioned a meeting of state delegates to map out a more stable, more formidable system of central government. Held in Philadelphia, the convention was called with the “sole and express purpose of revising the Articles of Convention”, in order to “render the federal constitution adequate to the exigencies of government and the preservation of the Union”. Prospects for the success of the convention didn’t look great when, on the opening day, only Pennsylvania and Virginia’s delegates turned up. The convention was rescheduled for 11 days later, when seven states were represented, a figure that, as the discussions developed, eventually rose to 12, with only Rhode Island resisting the invitation.

More bite was needed; national unity was in short supply

Two clear proposals were on the table when it came to deciding the structure of a new federal legislature. The Virginia Plan set out a two-chamber Congress, with the level of each state’s representation determined proportionately by the size of its population. The other proposal, the New Jersey Plan, posited the idea of a single-chamber legislature with each state having just a single representative – a scheme that gave the less populous states the same amount of voting power as larger states.

In mid-July 1787, after much debate and no small amount of rancour, the make-up of the federal legislature was decreed. Three branches of government were to be created: the legislative branch, which would make the laws; the executive branch, which would enforce the laws; and the judicial branch, to interpret the laws.

Forming the legislature proved the most divisive, resulting in the ‘Great Compromise’ – the upper house, the Senate, would have two senators from each state, the identity of whom would be determined by each state’s own legislature. The other chamber, the House of Representatives, would work on the system of proportional representation set out by the Virginia Plan, with the more heavily populated states having more representatives. These representatives would be directly elected by the people – or, at least, those sections of society permitted to cast votes.

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Triple threat

Then it came to defining the functions and powers of the executive branch. This was even trickier. Many states had weak executives themselves – figures appointed to just a single year in office without the authority to veto or appoint. The outlier was New York; its governor, emboldened by a three-year term, retained both these powers. It was this model that was most closely adhered to when the federal executive was established; a strong figure was believed to be necessary to perform the role of national unifier and defender of the republic.

Underpinning the political structure was a system of checks and balances, wherein the powers of each of the three branches of government – the executive, the legislature and the judiciary – were, when needed, clipped and curtailed by the other two. The intention was to avoid cultivating the kind of undemocratic rule that had characterised the colonial years. The danger was, though, that it could lead to stalemate, what the political historian Richard Hofstadter later described as “a harmonious system of mutual frustration”.

A strong figure was needed to perform the role of national unifier

That July, a Confederation of Detail was set up to draft a detailed constitution, followed, in September, by a Committee on Style and Arrangement to fine-tune the document. When presented at the final Convention, there was notable disappointment – disquiet, even – when it came to scrutinising the end product. Of the 55 delegates, 39 signed the document, but three refused and others left before the signing ceremony. One signee, the polymath Benjamin Franklin, told the Philadelphia Convention that there were “several parts of this Constitution which I do not at present approve, but I am sure I shall never approve them”. Franklin was sanguine. “I expect no better and … I am not sure that it is not the best.”

The Constitution was then placed before the Congress of the Confederation, which voted to send it to the state legislatures for ratification. Congress had given no recommendations to the states as to how to receive and consider the document. There was, though, clear opposition to its objectives and contents.

Risk of a king

Anti-federalist factions, philosophically opposed to the notion of a powerful central government, held a number of grievances. They believed that a presidency with such strong authority could eventually evolve into the kind of monarchical head of state that the revolution had been fought against. They also believed the constitution’s system of checks and balances wasn’t stringent enough when it came to the judiciary’s remit. In short, the anti-federalists were suspicious of any mechanism or body that weakened the powers of the legislature – de facto, the powers of the states’ representatives.

Their arguments were countered in a series of essays known as The Federalist Papers. Authored by the statesmen Alexander Hamilton, James Madison and John Jay, these were a conscious effort to raise approval for the Constitution to ensure its ratification. The authors were setting out to establish "good government from reflection and choice", rather than being "forever destined to depend, for their political constitutions, on accident and force".

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The federalist argument won the day. On 21 June 1788, the new Constitution was ratified by nine states, the minimum number required by Article VII of the Constitution itself. By the end of July, that figure was up to 11. The following March, both houses of Congress sat for the first time, but it would be a month before either was quorate, and thus neither chamber was able to vote on any proposal brought before it.

The following month, the first President of the United States was sworn in. Any reluctance in distilling so much executive power into just one man’s hands was at least partially assuaged by the fact that there was one outstanding candidate for the role: George Washington. That November, North Carolina became the 12th state to ratify the Constitution, with Rhode Island following suit six months later. The approval of all 13 states was complete.

The rights idea

Very soon, though, it was clear that there were notable omissions in the ratified document. With the Constitution largely covering the branches of government, the anti-federalists had vociferously argued for the inclusion of a Bill of Rights to protect the individual citizen. About this, they were correct, and James Madison quickly set about drafting a series of amendments to bolster the new Constitution. These proposed amendments – establishing such personal rights as freedom of religion, the right to bear arms and the right to a proper judicial trial – were whittled down, by the states’ respective ratification processes, from Madison’s original 12 to ten.

This ten-point Bill of Rights was enshrined in law by the end of 1791. It remains the backbone of citizens’ rights in the US and has been, due to societal changes since the 18th century, reinforced by a further 17 amendments to the Constitution over the intervening two centuries. Historian Hugh Brogan observes, “like the main part of the Constitution, these articles expressed a fundamental part of what the American Revolutionaries had fought for. They were not only democrats – the sense that they believed in the rights of the people, as opposed to kings and nobles – they were liberals, in the sense that they believed in the inalienable rights proclaimed in the Declaration of Independence. And now these rights were spelled out”.

The ten-point Bill of Rights remains the backbone of US citizens' rights

That 27 amendments to the US Constitution have been made is understandable; the age of the Founding Fathers is hugely different to that of today. Some commentators have been less charitable. In 1987, the year of the Constitution’s bicentenary, Supreme Court Justice Thurgood Marshall declared that he believed that “the government they [the Founding Fathers] devised was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government and its respect for the individuals and human rights we hold fundamental today”.

The historian Gordon Leidner would agree that there were shortcomings with not only the original Constitution but also those first ten amendments. “Noteworthy is the fact that, originally, the Bill of Rights implicitly excluded the rights of Native Americans, African Americans and women. These omissions would later result in war and significant civil strife.” Indeed, the Founding Fathers had drafted a constitution for their times. After all, James Madison, Thomas Jefferson and George Washington were slave owners.

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However limited the detail, the constitutional framework the Founding Fathers constructed has undeniably had lasting success and influence. “For decades, people around the world have replaced corrupt, oppressive governments with constitutional democracies,” explains RB Bernstein. “The model of ‘political building’ they follow is American, even if they devise their own constitutional architecture.”

The fundamental principle of checks and balances has produced a federal political system that, over many tests over the decades, has proven to be more than sturdy. “It continues to give us good reason to honour the men of the American Revolution,” says Brogan. “In a way, it defines what is politically best and most promising in the United States; what it means to be American.”

Nige Tassell is a freelance journalist specialising in history

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This content was first published in the Christmas 2019 edition ofBBC History Revealed