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Prior to the Revolution, Americans conceived of their rights to liberty primarily through the same kinds of historical and legal foundations as their thinking about property–namely, through the congeries of rights derived from society and
the sovereign. However, with independence, tensions and contradictions were created among the passive and active rights claimed by Americans; and without a direct sovereign but only a sovereignty derived from amongst the people, through liberties that could only be conceived as those which originated “in compacts among the people.”46
As Americans would continue to debate what actually constituted their liberty, first as colonists and then through the Articles of Confederation, a person could argue, “for two decades prior to the meeting of the Constitutional Convention, American public discourse was on ongoing public forum on the meaning of liberty.”48 Thus, when Americans had discovered by the winter of 1786-87 their government was in peril because institutional safeguards to liberty and property proved inadequate, the constitutional framers had learned “what many writers on politics had taught but the Patriots disregarded–namely, that republican forms of government were not synonymous with security for liberty and property.”49 It would be necessary for them to reconfigure government, and the question before them moved from “what” to “how.” In doing so, they would have to address the issue of people and states and nationhood.
It was not clear from the Declaration of Independence precisely who Americans were and what kind of government they possessed.
The Declaration had referred to Americans as “one people,” but it had also used the term the United States and declared the colonies to be “free and independent states.” Yet, whereas the Declaration may have been vague, the Articles of Confederation appeared to clarify the matter once and for all. As MacDonald noted, the “first substantive article declared that ‘each state retains its sovereignty, freedom, and independence,’ and the states could scarcely have their sovereignty if they did not have it to retain.”50
But it was not to be the immediate
case. The debate would continue; but, unlike the previous debates which simply pitted the puritanical republicanism that sought a moral solution by making people better against the agrarian republicanism that sought to provide socio-economic-political solutions by making better arrangements (for example, Jefferson’s stateless society under the benevolent leadership of a natural aristocracy), this debate understood the power of factions and would, therefore, focus on the issue of control primarily through Montesquieu’s conception of the separation of powers rather than on the idea of checks and balances.
Madison would, of course, proffer the idea one
could ‘refine and enlarge the public views,’ “not by attempting to increase the virtue of the populace, but by filtering popular views ‘through the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.’”51
This theory would “overcome the stumbling blocks to republican nationhood, Montesquieu’s dicta that republican forms of government were only appropriate to small territories such as cities and towns, and that only monarchies could govern large areas. It also provided a persuasive argument it would be safe to entrust power to a national government.”52 Yet, having established the legitimacy of a nation, there remained the ultimate question before the convention: what role would the states play under such a common authority?
It was clear states would remain within the national configuration (only George Read was willing to abolish states altogether, although
Hamilton might also have wished to do so). The question was: in what capacity? Hamilton objected, for example, to the idea states should be regarded as separate governments of a confederacy, arguing such an organization