“Born in Consensus, Living in Controversy: The Backdrop to the Articles of the Constitution” 

Introduction
Power begins in words. But those words do not appear in a vacuum. To grasp the full weight of the U.S. Constitution, and to meaningfully examine each of its Articles, we must first step backward—and into the world from which it emerged. Not a world of abstract reason, but one of political panic, economic disorder, and social instability. The Constitution was not written as a utopian blueprint. It was written as a response.

In Installment 1 of A Behavioral Reading of the Constitution Series, we explored how the Preamble framed the Constitution not as an abstract statement of ideals, but as a response to human tendencies in need of regulation. This installment expands that insight by returning to the conditions that made that regulation necessary—and by laying a behavioral foundation for everything that follows in the rest of the series. 

Too often, we were taught the Constitution as an abstraction—as a tidy set of principles, presented in isolation from the disarray that made them necessary. It appeared in our textbooks fully formed, removed from the anxieties, improvisations, and failures that shaped it. We memorized its clauses and recited its preamble without asking how or why such a document had to be written at all. But to truly understand what the framers built, we must place ourselves amidst the disarray. Because what they wrote was not a treatise—it was a desperate and brilliant response to the dysfunction all around them. 

To understand what the Articles mean, we must first return to the behavioral conditions and historical pressures that shaped them. It is a story of fragility mistaken for freedom, of rebellion mistaken for progress, and of structure born out of fear. The men who drafted this document were not envisioning perfection. These men worked not with ideal materials, but with what was at hand. They were engaged in a desperately serious exercise. They were attempting to preserve coherence in a collapsing experiment—and they were in a considerable hurry.

Independence Without Structure 

“Independence had dragged its way slowly into the lives of the peoples of the new United States. Most of New England was free of warfare and virtually independent after 1775; New York, however, remained occupied by the British throughout the war. 

There were few who could have identified the exact moment they felt they had achieved the freedom they had fought for. And even after that momentous transition, few would have said they felt any different from the day before. Many of the hardships and difficulties that had marked the path to independence remained unresolved and continued in much the same way—or worse. The people had won their freedom but had not yet learned how to live in it.” 

So begins the sober framing offered by historian J.R. Pole¹ in his annotated edition of The Federalist. His summary captures what too few constitutional commentators attempt: the ragged edge of victory, the psychological truth, and the fact that no document—no matter how well written—emerges from clear skies. Independence came not as destiny fulfilled, but with prolonged hardship and ambiguity. And the Constitution that followed was not a moment of ideological triumph—it was a work of preservation and survival. 

The Post-Revolutionary Landscape: Independence Without Unity
The American Revolution did not end in national unity, but in vulnerability and fragmentation. It ended with the emergence of thirteen newly sovereign states, each jealous of the others and exhausted from the burdens of war. While New England considered itself free by 1775, other regions, such as New York, remained under British control for years. The costs of war were staggering, the spoils unevenly distributed, and the dream of republican virtue was quickly eclipsed by economic strife, legal confusion, and civic breakdown. 

Pole notes that “feelings of hope for higher standards of living and new opportunities of western settlements were clouded with apprehensions of debt and foreclosures resulting from internal conflicts.” Farmers who had fought for liberty returned to find their homes seized by creditors. Inflation plagued the countryside, and paper money issued during the war was now nearly worthless. Congress, under the Articles of Confederation, could not levy taxes or regulate commerce. States printed their own currencies, imposed tariffs and erected trade barriers against each another, and routinely ignored federal mandates entirely. 

To many, it felt as though the Revolution had traded one tyranny for thirteen new, close-up, and unpredictable ones. And within each of these states, class tensions erupted. Legislatures were factional, frequently unstable, and veered into populist overreach or elite protectionism. Courts were overwhelmed with foreclosure proceedings. There was no national judiciary, no executive branch, and no cohesive way to enforce national decisions.

Liberty’s Bitter Harvest
The founders—those who would soon gather in Philadelphia—did not experience this chaos as an abstraction. They lived it. Some tried to govern through it. Others were burned by it. And still others feared that the very experiment they had fought to create was now imperiled by the very liberty they had secured. 

Pole reminds us of the deep irony: “The Constitution… was not in fact their own ideal constitution… it was the one which appeared best adapted to serve the purpose of maintaining republican institutions intact against internal disruption and external power.” This is the essence of temporal ethics, a theme we explored in Installment 1 of this Series: we must judge the framers not for failing to construct utopia, but for responding to real conditions under time pressure. 

No episode illustrates this more clearly than Shays’ Rebellion.

Shays’ Rebellion: Anatomy of a Panic
In 1786, in the hills of western Massachusetts, veterans of the Revolutionary War—many of them subsistence farmers—rose in protest against their state government. Their grievance was not ideological. It was material. The Massachusetts legislature, dominated by Boston merchants and commercial elites, had insisted on repaying war debts in hard currency—gold and silver—rather than the inflationary paper currency that farmers relied on. 

For farmers already in debt, this was devastating. They faced foreclosure, property seizures, and imprisonment. With no viable legal recourse, they turned to direct action. Under the leadership of Daniel Shays, a former captain in the Continental Army, hundreds of men began shutting down county courts to prevent foreclosure proceedings. They were not revolutionaries. They were men trying to stop their own economic annihilation. 

But to the elites of Massachusetts—and to observers across the young confederation—the sight of armed farmers disrupting the courts was chilling. It conjured the specter of mob rule, of lawlessness, of liberty turned inward on itself. As Pole writes:

“The rebellion sent shudders of alarm down the spines of the more substantial mercantile and propertied elements on a scale far wider than the boundaries of Massachusetts.” 

This was a crisis that the Articles of Confederation could not address. Under the Articles they had no army. No executive. No enforcement power. If another Shays arose in a different state, who could stop him? This question led directly to the Annapolis Convention of 1786, and ultimately to the call for a constitutional convention in Philadelphia in 1787.

The Constitution as Remedy, Not Ideal
When the delegates convened in Philadelphia, they did not bring with them a unified vision of government. They brought scars. They brought fears. They brought memories of a republic drifting toward ruin. And they brought an urgent need to preserve what remained before it collapsed under its own weight. 

As Pole reminds us, “[The Constitution] they produced was not a statement of new political principles,” but rather “a design for a structure of government.” The shift is critical. They were not writing philosophy. They were writing architecture. The goal was not to embody virtue but to channel conflict—ambition would be checked against ambition, power checked by power and process. 

Article I is the first manifestation of this design. It begins not with the executive or the judiciary, but with Congress. Why? Because the framers understood that power must be placed first and foremost in deliberation. Law begins in words—not in swords. And law, if it was to mean anything, must be anchored in a structure that could survive disagreement. 

An Architecture of Restraint
The structure is not perfect. It reflects compromise and concessions—between large states and small, between slaveholding states and free, between populism and aristocrats. But that, too, is part of the story. The structure had to be accepted by people who did not agree, and by states that had begun to doubt their union. This was not idealism. It was constitutional triage. The Constitution had to hold together a people already falling apart. 

A Constitution Born of Tension
Pole reminds us that The Federalist Papers—those essays which would become the most enduring defense of the Constitution—were written not as political scripture but as campaign literature. “The aim of the essays was to gain support for the ratification of the Constitution,” he writes, “and their authors had no hesitation in deploying the rhetorical arts of persuasion, even propaganda.” 

Between October 1787 and May 1788, Alexander Hamilton, James Madison, and John Jay undertook what was essentially a public relations campaign through publishing of the Federalist Papers to encourage New York to ratify the U.S. Constitution. Though the members of the Constitutional Convention had already approved the document as of September 17, 1787, it could not go into effect until at least nine states ratified it.

…but they were not the only voice.

The Anti-Federalists: The Chorus of Caution
Too often we forget that the Constitutional Convention—and its subsequent defense—was deeply contested. The Anti-Federalists were not malcontents. They were patriots, farmers, legal minds, and local officials—skeptical of centralization, fearful of elite overreach, and questioned whether the new Constitution could truly protect liberty. They were unwilling to trade one form of tyranny for another.  

Their writings, though scattered and less coordinated than the Hamilton, Madison, and Jay’s Federalist Papers masterstroke, posed serious questions: Would the proposed government become too powerful? Where were the protections for individual rights? Why was there no bill of rights? 

Although their voices were overwhelmed in the ratification process, they were not extinguished. Their pressure would ultimately produce the first ten amendments. Their concerns, while outpaced politically, would echo across generations. As we analyze the Constitution, we must remember: the Constitution was not universally embraced. It was hotly contested, and only barely adopted. It is a reminder that the Constitution was never a sacred artifact. It was born of human hands and written under extreme pressure to avert human collapse.  

As the great American political scientist Herbert J. Storing² concluded in his 1981 seven-volume collection The Complete Anti-Federalist,  

“Importantly, Anti-Federal thought explored these tensions and pointed to the need for any significant American political thought to confront them; for they were not resolved by the Constitution but are inherent in the ongoing principles and traditions of American political life. We are a nation that was born in consensus but lives in controversy, and the main lines of that controversy are well worn paths leading back to the founding debates.” 

Conclusion: The Behavioral Frame
To read any section of the Constitution without understanding the fragility that surrounded it is to misread the architecture that follows. The vesting of powers was not merely an act of design; it was an urgent bid to channel disorder, to stabilize faction, and to prevent collapse. The Constitution is a response to fear, a product of compromise, and a tool to manage the recurring drama of human frailty. 

But the work of governance is never settled. The tensions the Constitution sought to stabilize continue, not because the document failed, but because those tensions are the very substance of American political life. With these tensions unresolved—but acknowledged—we arrive at the foot of the constitutional pillars. In our next installment, we turn to Article I, Section 1 through 3—where the Constitution, after this long and fragile prelude, quietly begins its work by assigning power through words. 

¹J.R. Pole, whose career as a British historian of the United States spanned more than fifty years, died in Oxford on January 30, 2010.  He was 87 years old.  From his magisterial Political Representation in England and the Origins of the America Republic, published in 1966, to his ambitious Contract and Consent: Representation and the Jury in Anglo-American Legal History which appeared a few weeks before his death, Pole explored with perseverance and perceptiveness the English roots in the growth of American law and politics.

Scholars for generations to come and Lyceum Circle of Leaders owe a great debt of gratitude to J.R. Pole for his annotated edition of The Federalist Papers which was published in 2005.  The plethora of allusions which Hamilton, Madison, and Jay—never loath to display their own erudition—make in their essays have been tracked down and explained by Pole, whether they refer to an Augustan poet, a pamphleteer in contemporary Pennsylvania, or the League of Cambrai formed against Venice in 1508.

²Herbert J. Storing (1928 – 1977), was an American political scientist with broad ranging interests who is best known for reviving the serious study of the American Founding. The constitutional theorist and American politics scholar Walter Berns called him “the most profound man I have encountered in the field of American studies.”

A master of political theory, Storing died at the age of 49, right after delivering the manuscript of ”The Complete Anti-Federalist” to the publisher. Devoted friends saw the set through the press and composed the index volume. We are richer for their assistance in making this monumental work of exacting scholarship a legacy to Storing’s memory. He endowed all of us by his indefatigable research, lucid and provocative writing and unsurpassed editing.