Upon the Declaration of Independence, a “plan of confederation” was offered to be prepared for the colonies. This plan, known as The Articles of Confederation, established a “league of friendship” among the states rather than a national government. The most significant fact about the created government was it’s weakness, it could not enforce even the limited powers it had. In James Madison’s words, in his Federalist Paper #10 “complaints are everywhere heard…that our governments are too unstable”. The states had won their freedom but had been unable to form a nation. They fought among themselves, suffered from severe economic depression, and came close to losing the peace they had won in war. These political and economic factors generated pressure for the creation of a new national government and a constitution.
In Madison’s view, politics was overrun by different “factions”, which were groups of people who shared the same interests, different from other people or the opinion of the whole. These factions, he thought, prevented the government from its most important task, which in his opinion was to protect the owner’s of the land and property. The ownership of the land was divided according to people’s different skills, faculties, and according to Madison, “the protection of these faculties is the first object of the government”. And since the majority of the people were farmers and poor, and since “those who hold and those who are without property have ever formed distinct interests in society”, Madison wanted a constitution that would give the government the power to control the majority.
In his address to the American Bar Association, Thurgood Marshall criticizes the constitution by saying that “ I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia convention”. In his opinion “ the government that they devised was defective from the beginning”, meaning that the Constitution required several amendments before it became what people today consider as “the basic structure of the American government”. The constitution is very different today than what the framers began to construct two centuries ago. Marshall thinks that there was much wrong with the original document, he finds many “inherent defects”, but is willing to admit that it was “a product of its times and embodied a compromise that, under other circumstances, would not have been made”. By this he means the contradiction between promising “liberty and justice for all” and denying both from blacks. He seems very bitter about the events in history considering the black people as he says that the Constitution, as originally written was “a document that laid a foundation for the tragic events that were to follow”, meaning slavery. But what both Madison and Marshall agree on, is that the constitution was not perfect and complete in the beginning, it required amendments.
The word “democracy” was not popular at the Constitutional convention in Philadelphia, because at the time it meant rule by the masses, and the framer’s thought that majority rule would be mob rule. According to Madison “such democracies…have ever been found incompatible with personal security, or the rights of property”. At that time it was difficult for the average person to be aware of national issues, and that’s why a republic, a representative democracy was created. Madison wanted a system of representation, which would not allow the majority rule, in his opinion the representatives would be more “enlightened” than the average people. Also because of the size of the area, it was easier than direct democracy. The constitution left voting requirements up to the state government, and only free white males were allowed to participate. Madison didn’t believe in the equality of all citizens, as he says “by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions”. This idea, “rage for…an equal division of property, or for any other improper or wicked project”, seems impossible and dangerous to him.
Considering majority rule as a part of the definition of democracy, in Thurgood Marshall’s opinion the Founding Fathers did not have in mind the majority of the American people when they used the phrase “we the people”. Most of the people, women and slaves, were not allowed to participate, only the “free persons”. In Marshall’s view the representation was also defective since it was based on “the population of free persons in each state, plus three fifths of all other persons”. And all men were not “created equal”, the moral principles against slavery were compromised in the economic interests of the states. The constitution needed the Bill of Rights and the 14th amendment in order to “protect individual freedoms and human rights”. The credit for guaranteeing these rights, in Marshall’s words, “does not belong to the framers”.
James Madison, Federalist # 10
Thurgood Marshall, Letter to the American BAR Association