A constitutional scholar's theory. Why the American union survived

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The Forging of the Union, 1781-1789, by Richard B. Morris. Harper & Row. 416 pp. $22.95. JUST as the celebrants of the bicentennial of the Constitution were settling down to a venerative round of commemorations, along comes Associate Justice Thurgood Marshall to admonish them that they have been parading with their clothes off.

```We the people' no longer enslave,'' he declared to an unsuspecting group of patent attorneys, whose business derives from the constitutional protection of inventions. ``But the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of `liberty,' `justice,' and `equality,' and who strived to better them.''

The Constitution supported slavery by counting three-fifths of the slaves as population for representation in the House of Representatives, continuing the importation of slaves for 20 years, and providing for the federal apprehension of runaway slaves.

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The standard explanation of these injustices, and the one given by Richard B. Morris in his book on the formation of the Constitution, is that without them the Constitution never would have been ratified.

Was there no alternative?

Underrated by this book is the New Jersey Plan, introduced by William Paterson, which would have continued the unicameral Congress of equal state representation established under the Articles of Confederation, thus eliminating any population representation at all.

This plan would have given the national government the needed power to tax, control commerce, and levy tariffs, and even the authority to use armed force against states that disobeyed laws of Congress.

True, three-fifths of the slaves would have been counted for purposes of apportioning revenue requisitions among the states, but this probably would never have been applied, since the main source of national revenue in the early republic was to be the tariff.

The New Jersey Plan was not adopted because the nationalists in the Northern states were determined to win clout for their populations. Had they known it, they were igniting the time bomb for the Civil War; the South, accustomed to having its way, in 1861 refused to be outvoted by the free states entering the union.

Morris is an enthusiastic champion of the nationalists, and his book proclaims more forcefully and fully than any work yet that they rescued the nation from dissolution.

He marshals the crude early statistics to tally up a dreary picture of sharp wage and price declines, a burst credit bubble that produced severe indebtedness and unemployment, an adverse balance of trade, and an inflationary spiral fueled by state issues of paper money. Farmer indebtedness in western Massachusetts flared into Shays' Rebellion, which, although short-lived, spread along the back country from New Jersey to South Carolina. Great Britain imposed exclusionary trade restrictions against a United States powerless to retaliate.

Morris does not deny the Confederation's solid accomplishments - the chartering of the Bank of North America, the enactment of the Northwest Ordinance for admission of nonslave states to the union, and, most of all, the Revolutionary Treaty of Peace, concerning which he refers his readers to his earlier work, ``The Peacemakers'' (1965).

But he unconditionally rejects the charge made by Charles A. Beard, in ``An Economic Interpretation of the Constitution'' (1913), and by Merrill Jensen, in ``The New Nation: A History of the United States During the Confederation, 1781-1789'' (1966), that the framers conjured up a false picture of a depression in order to hoodwink the public into accepting a strong central government.

Perhaps his most novel brief for the nationalists is his contention that national sovereignty derived from the people, not the states. The people had overruled their Colonial assemblies in electing delegates to a Continental Congress in 1774, and the Congress had issued the call that brought the revolutionary states into being. This may be convincing to some legal minds (Morris is a trained lawyer as well as a prize-winning Columbia historian) but will hardly persuade modern states rights enthusiasts.

Max M. Mintz is author of ``Gouverneur Morris and the American Revolution.''

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