Book Review: The First Congress, By Fergus Bordewich

Although the Constitution was ratified by the requisite number of states by 1788, it was the First Congress [1789-1791] that would put into effect that which was only on parchment.  That is the story told by Fergus W. Bordewich in The First Congress. How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government [my nominee for longest title, by the way].  I want to commend Bordewich on adopting the historical style of writing in chronological order - telling the story exactly the way it impacted the players at the time. While sometimes confusing, it provides a true picture of how the men and women who played roles in history often have to juggle many different items at once.  History is not clean and historical events do not happen in chapters that have a beginning and an end. For example, as President Franklin Roosevelt was faced with war on two hemispheres simultaneously, I've always appreciated those books who wrote chronologically, going back and forth between the two wars- often on the same day - just as Roosevelt had to.  That is how Bordewich tells the story of the First Congress,

In that First Congress, in both houses, there was no leadership structure as we know it today.  While there was a Speaker of the House [Frederick Muhlenberg of Pennsylvania], the position was ceremonial. Into that vacuum, James Madison took on a leadership role in the House. But it would be a mistake to consider him the only strong voice in that First Congress. As Bordewich writes, "Madison was only the first among equals in a diverse and individualistic body. The 95 senators and representatives who served in the First Congress were a comparatively youthful lot, mostly in their 40s and 30s...Despite their competing interests and personalities, they would perform a feat of collaborative political creativity that has rarely been rivaled."

The list of accomplishments of that body are impressive: creation of the Departments of State, War and Treasury and the Office of Attorney General; the creation of the Supreme Court, as well as the federal court system; the first ten amendments to the Constitution; the creation of a system of duties and tariffs that provided the nation's first revenue stream; the adoption of a national financial plan; and the creation of a National Bank. And those are just the highlights.

One of the amusing tales in the book is the story of how that First Congress convened. Although it was set to meet on March 4, 1789, there was no quorum. The lack of urgency to arrive on time is noteworthy when compared to 18-months later when every single member would be present for the start of that session.  Even Madison was late, arriving March 14. As Bordewich writes, "Without the quorum, the new government didn't really exist. The ballots for President and Vice President couldn't be counted. No legislation could take place. Courts could not be created. Revenues could not be raised." The House finally reached a quorum on April 1, while the Senate complied by April 5.

Among one of the earliest debates in Congress was the issue of presidential appointments - in particular, whether an appointee could be removed without Congressional [Senate] consent. Here, Madison stepped into the breach and in so doing changed the nation's history in strengthening the presidency.  Bordewich writes, "What Madison said was that the Secretary of Foreign Affairs [soon changed to State], and by implication any other officials named by the president, were to be appointed 'with the advice and consent of the Senate, and removable by the president'. Such language did not exist in the Constitution and implied that once a man had been appointed to office, he would then serve at the discretion of the president alone."

The issue of amending the Constitution was bitterly fought - although today we consider the Bill of Rights to be a natural progression from the Constitutional Convention of 1787. In fact, the term 'Bill of Rights' wasn't even in use at the time, and wouldn't be until the turn of the 19th-century. Debate began June 8 . As Bordewich writes, "Madison had two goals: to win the support of anti-Federalists, and to fend off amendments that would fatally injure the Constitution." In fact, Madison did not even want the amendments, fearing that amending the document so soon after it's ratification would jeopardize the document entirely.  But, Bordewich notes, "Madison believed that if he did not propose the amendments, they would come within three days from the anti-Federalist side. It was better that the amendments should 'appear to be the free gift of the friends of the constitution' than to have been 'extorted' from them by its enemies. Finally, and most important, he predicted, 'it will kill the opposition everywhere, and by putting an end to the disaffection of the government itself, enable the administration to venture on measures not otherwise safe.'"  Yet, when Madison sought to introduce the topic, he was shocked to find that his colleagues in the House were not yet ready to do so.  Bordewich notes, "There was no sense of agreement as to the proper direction to go so, instead, the feeling was to put aside amendments for now and deal with other pressing issues. Thus the amendments would have to wait for now."

Instead, Congress looked at the creation of a federal judiciary. The Constitution empowered Congress to create the Supreme Court and "such inferior courts as the Congress may from time to time ordain." Sen. Oliver Ellsworth of Connecticut was primary author of what became the Judiciary Act of 1789.  The bill, Bordewich writes, "provided for a Supreme Court consisting of a Chief Justice and five Associate Justices, who would meet twice a year at the seat of government, and the division of the country into 13 judicial districts, each with its own 'inferior' federal court, U.S. attorney, and federal marshal. In a major innovation, the creation of three regional circuit courts consisting of a District Judge and two traveling members of the Supreme Court, would also meet twice annually to hear appeals from the district courts and thus 'carry law to (the People's) homes, courts to their doors', as [Sen.] William Paterson [of New Jersey] put it." The bill also created the cabinet office of Attorney General.

The public at that time was quite distrustful of a judiciary - which in past history had been seen as nothing more than enforcement arms of kings and tyrants.  Thus, Bordewich writes, "For the judiciary to work it had to be accepted by the distrustful public. For that to occur, it would have to be adopted by substantial majorities in both houses of Congress. A close vote in either house would lend credence to the warnings of the bill's enemies." On July 17, it passed the Senate 20-6. The House would overwhelmingly pass it in September.  The importance of the Judiciary Act of 1789 cannot be overstated.  As Bordewich notes, "The bill's full impact would not be felt for many years, even generations, to come. But combined with the rights that were being codified in the first amendments to the Constitution, it would one day become a great dynamic engine that would carry justice into every community and transform American society to its roots."

By August, Congress was ready to address the amendments.  It's important to remember that modern Americans hold the first ten amendments in much higher regard than the Congress did in 1789.  As Bordewich writes, "Considering the gravity that the Constitution's first Ten Amendments have now acquired, Congress' debate over [the subject] was remarkably short, snappish, and driven by the politics of the moment rather than by appeals to lofty ideals." Indeed, Madison allotted only a single week of debate for the proposed amendments.  Madison was adamant about keeping attention focused solely on the ten amendments that he had created, having whittled them down from the 200 or so proposed addendums to the Constitution.

The outcome was not certain. Federalists wanted no amendments at all, while anti-Federalists felt that Madison had not gone far enough with the ten he was proposing. There was also the issue of exactly where in the document the amendments should appear.  Madison strongly believed they should be placed within the body of the Constitution itself, while others argued they should simply be tacked onto the end of the document.

In the end, 17 amendments were approved by the House of Representatives. They then went on to the Senate. That body then compressed those 17 into 12.  Amendments 3-12 are what we recognize as the Bill of Rights [amendments 1 and 2 would not be officially ratified until 1992, over 200 years after Congressional approval].

Bordewich writes that, after the amendments passed, "the collective mood was less one of triumph than of sheer exhaustion. No one in Congress regarded passage of the amendments as much more than an exercise in political housekeeping....Virtually no members of Congress imagined that they had just passed a set of measures that would become, in their own right, part of the sacred canon of American democracy. The members were practical, impatient, and tired politicians, many of whom had regarded the whole debate as at best a distraction from things that mattered: the national revenue, the protection of codfish and molasses, the establishment  of courts, defining (or enlarging) presidential power, and agreeing on a permanent capital.

The rights that the amendments described would be nothing more than paper guarantees until the judiciary discovered them: in 1789, they were for the most part only aspirational and unenforceable." Nor would the Bill of Rights acquire the sacred aura that surrounds it today until well into the 20th-century. Bordewich writes that the esteem in which the Bill of Rights is held today is, "a development that owes less to the foresight of the Founding Fathers than to the determination of morally aroused citizens and the willingness of the modern judiciary to challenge discriminatory and oppressive  state legislation."

It is also worth noting that the order of the amendments actually was accidental and not indicative of the importance placed up on them by Congress.  Bordewich writes, "The final order of the amendments was completely arbitrary. It had no correlation with what the members deemed most or least important. Indeed the First Amendment, as it is known today, became so only by default, when the two proceeding amendments - on congressional apportionment and compensation for members - failed to achieve ratification by enough states."  It is also worth noting that three states - Massachusetts, Connecticut, Georgia - would not officially ratify all Ten Amendments until the sesquicentennial of the debate, in 1939."

With the end of the first session. of the First Congress, Bordewich writes, "To be sure, much work was left undone...that daunting mountain of state and national war debt still loomed, crippling the nation's ability to borrow. Somehow the government would have to find a way to pay for it[self]. By most every measure, however, the session's legislative record was impressive; few, if any, later congresses would come close to matching it. The machine of government had begun to work."  Of all the accomplishments, though, simply persisting in unknown territory was perhaps the greatest achievement of that First Congress.  As Bordewich writes, "Not the least of the session's achievements was that it had continued to function despite so many personal, local, and ideological rivalries and conflicts that, had members exhibited less self-control and commitment to the concept of divergent ideas for the public good, it might easily have transformed political conflict into crippling crisis."

Secretary of the Treasury Alexander Hamilton used the time between congressional sessions to write his Report on the Re-Establishment of Public Credit. He delivered the report on January 14, 1790. Although he had wanted to deliver it in person - he knew that the intricate details of finance were beyond the scope of knowledge of most in that First Congress - congressional opponents insisted that he stay away.

The report was colossal and called for a seismic shift in the way most Americans thought about finance. Bordewich boils down the plan nicely: "To address the debt, Hamilton proposed not levying heavy taxes - the conventional course - but refinancing it by borrowing more money, an expedient that horrified many members of Congress and other Americans, who regarded debt as a sin. Hamilton then explained one of his most provocative ideas: that debt could be used as a creative force. As the interest on debt was paid, the debt's value would increase, adding to the creditors' assets, because the borrower - in this case the United States - was proving the trustworthiness of its commitment. The national debt could then become a commodity that could profitably be bought and sold in the financial market place. Creditors would support national stability, in their own self-interest, while the shared debt would help bind the states more closely together, and at the same time create an alliance with the banks that would make possible dynamic economic growth forward. Debt would, in effect, become a substitute for money. In turn, the nation's economy could be stimulated because more capital would be circulating to invest in manufacturing, commerce, and agriculture. Hamilton went further. He proposed that most of the war debts of the states be assumed by the federal government - that is, folded into the federal debt - and that the treasury issue it's own new securities to replace the old ones."

After attempting to digest what Hamilton was proposing, the first issue to come to the fore was the idea of discrimination.  Again, Bordewich does a nice job of concisely explaining: "It quickly became clear that the initial battle over debt would focus on the highly charged issue of discrimination: that is, whether to pay the current holders of securities at face value, or to disfavor them - to discriminate against them - by reimbursing only what they had paid for the certificates, to pay to the securities' original recipients the difference between the face value and whatever fraction of that amount they had sold for."

Into this fire came a separate issue - slavery. On February 12, 1790, Muhlenberg introduced a petition from the nonsectarian Quaker-dominated Pennsylvania Abolition Society. It was signed by a terminally ill Benjamin Franklin.  Bordewich writes, "The language was dispassionate, but its meaning was clear: it was calling for a national commitment to emancipation. It landed like a bombshell. Criticism of the slave trade might be irritating [in Congress], but it was marginally respectable. To members from the lower South, talking openly about abolition was racial treason."

Madison was appalled. His thoughts on slavery by 1790 were not unlike many of the other Founding Fathers who hailed from the South - that it was an abominable but necessary institution that, one day - hopefully - would go away...somehow.  Bordewich writes, "Three things were starkly clear to [Madison]: that slavery contradicted the Revolution's founding commitment to human equality, that southerners [including his own constituents] would resist yielding control over their slaves to a national government where anti-slavery men held any influence, and that political combat over slavery would likely explode the two-year-old Constitutional compact. His present goal was to push the slavery question off Congress' agenda because he believed that it would lead to the destruction of either the planter class, to which he belonged to, or the nation itself."

After Madison adroitly tucked away the slavery petition for the time being, he dealt directly with Hamilton's plan.  On discrimination, Madison believed that the original holders of the debt - almost entirely soldiers - must be wholly reimbursed the full value of the securities. In a stunning defeat, however, the House decidedly rejected Madison's attempt to substitute language calling for discrimination into the bill. The holders of the debt - whoever they were - would receive full value. It was a stunning defeat for Madison and an equally triumphant victory for Hamilton.

On the issue of the federal government assuming the debts of the states, votes were evenly divided.  Bordewich notes, "Opposition would come mainly from Virginia, Maryland, and- it was anticipated, once her delegates arrived - North Carolina [where the Constitution had finally been ratified], which had all paid off their debts. Pennsylvania, Massachusetts, Connecticut, and South Carolina were strongly for it, along with elements of the New York, New Hampshire, and New Jersey delegations. Massachusetts and South Carolina - which had suffered the worst from wartime depravations - stood to benefit most."

Meanwhile, the issue of the slavery petition hung over the chamber.  Bordewich writes, "The Quakers' campaign had no practical effect but was not without significance. It palpably deepened southerners' suspicion of the North, which would soon manifest itself with renewed toxicity in the coming debate over the establishment of the federal capital. It also created an unofficial 'gag rule', which in the 1830s would explicitly bar any discussion of slavery in Congress.  Still more lasting was the coalescence of a pro-slavery polemic so well thought out that - refined, polished, and endlessly reiterated - it would be used in debates for the next seventy years, until it finally led to the secession and civil war that the southerners of 1790 so loudly threatened." There was also a fear was that the anger caused by the slavery debate had ruined any chance of southern support for Hamilton's assumption and funding plans.

Thus, by May 1790, the tension among the members of Congress was severe. Indeed, Bordewich notes, the "public disgust with the paralysis at Federal Hall - and by extension with the new government itself - was also reaching an ominous pitch."

It was in this tense climate that perhaps the greatest random encounter in American history took place to present a solution.  Walking to meeting at President Washington's home, Secretary of State Thomas Jefferson happened upon a distraught Alexander Hamilton wandering the streets outside the President's House. Hamilton looked awful.  As Bordewich writes, "As they paced back-and-forth in front of Washington's door, Hamilton, looking haggard and disheveled and 'dejected beyond description,' according to Jefferson, pleaded that the integrity of the union hinged on assumption. If it failed to pass, he intended to resign. Could Jefferson speak to his southern friends and try to bring them around? The Virginian replied, why not sit down with Madison for a 'friendly discussion?' Later that day, Jefferson sent notes to both men, inviting them to dinner the next day at his home, adding genteelly that 'men of sound heads and honest views needed nothing more than explanation and mutual understanding to enable them to unite in some measures which might enable us to get along.'"

At dinner, the two men struck a bargain: Madison would provide enough votes for Hamilton's plans to pass, while Hamilton would provide enough votes to move the capital permanently to an as-yet-undesignated site on the Potomac.  Bordewich writes, "Madison's strategic patience, Jefferson's fortuitous arrival on the scene, and Hamilton's exhaustion of his other options produced a bargain that could probably not have been accomplished earlier. That it took place at all seems obvious only with hindsight. Many members of Congress feared, with reason, that without a compromise to drain off bile-filled sectional jealousies, a collapse of the government would soon ensue. But the figurative, and perhaps actual shake [of hands] across the dinner table was just the beginning."

When the second session of the First Congress convened on December 4, 1790, there were no quorum problems.  This was indicative of the strength the new government was gaining, even with the rise in tensions.  As Bordewich writes, by convening on December 4, it was "almost the first time since the Revolutionary War that any Congress had assembled so close to its appointed time - a sufficiently remarkable event that the French minister saw fit to report it to Paris as a sign of the increasing stability of the American government. Indeed, the punctuality of members was, in its prosaic way, a vital symbol of the commitment that they felt to this new form of government, which two years earlier many feared might never work at all."

No sooner had they reconvened than Congress was presented with the next phase of Hamilton's plan, a proposal for a national bank.  Hamilton, Bordewich writes, argued that,  "the national bank would be an invaluable asset to the country: providing a repository for government funds, creating a trustworthy paper currency, servicing the national debt, managing foreign-exchange, and creating a permanent pool of investment capital that would foster economic growth. Hamilton proposed an initial capitalization of $10 million." Passage in the Senate was never in doubt, as it did 10-6 on January 20, 1791.

The House was a greater challenge.  As Bordewich notes, "As much as any other issue facing the First Congress, the short but divisive battle over the Bank widened the fissures between centralists and advocates of states' rights, and between the advocates of liberal versus strict construction of the Constitution, a rift that in turn nourished the growth of the political parties that would soon become the organizing engines of American politics."

Madison led the opposition in the House, arguing that the Bank was unconstitutional. The argument revolved around 'implied' powers in the Constitution: pro-Bank forces believed there were implied powers [that is, not specifically stated], while anti-Bank foes believed there were not.  Bordewich writes, "[For Madison] the proposed Bank was in no way 'necessary' to government; at best, it was merely 'convenient'. The Constitution [Madison argued] granted the federal government only limited and enumerated powers and no others." Simply speaking: there were no implied powers. Bordewich writes, "The speech was a startling demonstration of how far Madison had traveled from principles that he had espoused as recently as the first session, when he was the driving engine of the [Washington] Administration's centralizing agenda. Now his assault against federal power sounded indistinguishable from that of the anti-Federalists he had once scorned.". Why? Why did Madison change so quickly?  Bordewich says Madison's motives were mixed.  Certainly, he says, some of it was simple politics - he feared that with the Bank being chartered in Philadelphia for twenty years that might jeopardize the relocation of the capital to the Potomac.  Still, Bordewich,  writes, "Nevertheless, the arguments he made were compelling. He feared, with some reason, that the Bank would instigate a surge of unbridled speculation, and he genuinely worried that if loose construction of the Constitution prevailed, executive power might never again be reigned in."

In the end, the House easily passed. the Bank Bill  The battle was not yet done, though, as Washington needed to sign it. Would he? It went to the President on February 14 and he had ten days to sign or veto it; if he did nothing, it would become law without his signature. Madison made a final effort to kill it, writing a report to Washington with the salient points arguing why he should veto the bill.

There was a wild card - the exact location of the capital on the Potomac. On January 24, 1791, Washington informed Congress that he'd chosen the absolute southern-most section of the Potomac site permitted under the law - much further south than anyone thought he would. In fact, he wanted it amended to allow for it to be extended even further south. Considering that doing so would mean that lands owned by Washington, members of his family and other friends, would now skyrocket in value. Anyone but Washington would have been publicly accused of larceny. Privately they complained, but no one would publicly attack Washington. This now set up a quid-pro-quo with the Bank in return for the location of the Capital.

Hamilton worked, at Washington's request, on a response to Madison's arguments to veto it. Hamilton argued that Madison was wrong: there were implied powers - and he used Madison's own words to make the point.  In The Federalist, Bordewich writes, Madison argued that, "If the Constitution had to include a full enumeration of all the powers 'necessary and proper' to government, it would not only be ludicrously long, but also have to take account of 'all the possible changes which futurity may produce...no axiom is more clearly established in law or in reason that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particularly power for doing it is included'." Here was James Madison [albeit circa 1787] arguing in favor of implied powers.

Washington signed the Bank Bill February 24. Bordewich writes, "With the Bank's future assured, Congress speedily passed by a large majority the president's bill to extend the federal district southward to include Alexandria, Virginia."

The First Congress ended March 3, 1791.  Bordewich writes, "from a piece of paper, the members of the First Congress had made a government: the republican dream had been breathed into life, given political flesh and bone, pushed to its feet, and made to walk."

Still, Bordewich does have criticism. He notes, "The most consequential failure of the First Congress was its evasion of the corrosive problem of slavery when confronted with the Quaker petitions. Even members who loathed slavery figured that the new government could not risk an open debate on the subject without its splintering. They may have been right. But for the next seven decades this evasion encouraged southerners to bully any northern politicians who challenged slavery by threatening secession and war, as the number of enslaved Americans swelled from 323,000 in 1790 to almost four million in 1861, and the moral problem of slavery became ever more deeply enmeshed with the politics of states rights."

In the end, though, Bordewich argues it was an unmitigated success.  He writes, "The First Congress gave new and dramatic force to the republican idea. It did not create a democracy; that would evolve only slowly over time. Nearly all the political men of the 1790s, including George Washington, still believed that government was the proper province of the wealthy and well born. Yet, the triumph of the First Congress was not only a victory by, or for, the governing class. Madison and his colleagues had transformed the Constitution's parchment plan into muscular and enduring institutions that would be flexible enough to accommodate in years to come the rising power and democratic demands of Americans whose voices had been heard only distantly before in the corridors of power."