The Return of the Monarchical Principle (I). The Origins of North American Presidentialism
(1)
Legal History, Rey Juan Carlos University, Madrid, Spain
The care of human life and happiness and not their destruction is the first and only legitimate object of good government—Thomas Jefferson (1743–1826)1
Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint.—Alexander Hamilton, (1757–1804)2
The unity of Government, which constitutes you one people, is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very Liberty, which you so highly prize.—George Washington (1732–1799)3
14.1 The Development of a Republican “Monarchy”: The Presidential System
14.1.1 The Crisis of Democratic Assembly-Based Governments
The American and French placed power in the hands of democratic legislatures: the Congress, in the case of the United States of America, and the National Assembly in France. Both regimes, however, generated a situation of political instability that degenerated into chaos, especially in the case of France. Thus, after a more or less brief stage—4 years in the case of the United States and 10 in that of France—governments in which the legislative branch held virtually all power gave way to others featuring a one-man executive wielding greater power and heading up the government. We will see in this chapter how the Americans developed a system of government which combined the republican form of state with a strong executive power via a system which would prove to be very different from what Napoleon established in France towards the same end—something which we will examine in next chapter.
14.1.2 The Resurgence of Executive Power
In the case of the United States, this solution was reached by consensus through a Constitutional Convention yielding a new founding document: that ratified in 1789, which fortified the union of the states through the creation of a federal bond between them. Thus arose a “super state” assuming a number of the powers which had previously lain with each one of the 13 states. The major new development was that, in addition to the legislative branch (Congress) there appeared a powerful Executive in the form of a president with wide powers, elected every 4 years, a feature for which the new system was named: “presidential”. In a way this development represented a return to monarchy (by concentrating power in one man’s hands), following Bolingbroke’s idea of a “Patriot King”,4 albeit in this case with an elected leader who governed a republic for a limited period of time.5
14.2 Thirteen States, One Nation: From the Articles of Confederation to the Federal Republic
The victory of the American revolutionaries over England (with key support provided by France and Spain), spawned a new nation made up of all the former colonies which had fought against England, but 1 divided into 13 states, each with its own constitution, government, and institutions. Nevertheless, conscious of the fact that their union had been decisive in their victory against the British crown, the new states from the outset created a joint assembly, a national Congress in which the representatives of all the states met to discuss issues of shared concern and, when appropriate, to approve measures binding upon all of them. This was the first constitutional government of the United States: the “Articles of Confederation”. The nation’s initial constitutional framework, however, did not include any viable institutional mechanism to implement and enforce decisions made by the Congress, a flaw which ultimately rendered the “union” almost inoperative.
This fact was not overlooked by America’s elite, which clearly perceived that, unless united, the nation would not be able to compete with its European counterparts. Of particular concern was England, which continued to have a firm hold on Canada, and Spain, which after the 1783 treaty still maintained an immense and solid empire in the Americas, including territory which covered a third of the present-day United States of America.
14.2.1 The Stage of the Constitutional Debate (1783–1787)
14.2.1.1 The Impotence of the Articles of Confederation
Under the Articles of Confederation system, designed in 1777, the “national Government” was little more than a league of states who met intermittently in congresses when circumstances so required. The states were essentially all-powerful, as the second clause of the Articles of Confederation made it crystal clear that “each state shall retain its sovereignty, its freedom, and its independence, as well as each power, jurisdiction and right which has not been specifically delegated by this Confederation to the United States, gathered in Congress”. In addition, the financial maintenance of the national Congress depended on the monies granted it by the governments of the different states, at their discretion. Most of the states were not inclined to augment central power, as they were wary of the establishment of a stronger and more authoritative national government.
A certain sector of American public opinion, however, was in favor of strengthening the union and endowing it with a more powerful national government.6 Industrialists and merchants, for example, wanted a government capable of establishing tariffs that would protect the 13 states’ market and productive system, and argued that it was necessary to enact uniform laws governing commerce throughout the new nation. In addition, those interested in acquiring new property in the west thought that their land would be safer under a strong federal government. Finally, also in favor of a tighter union were those who sought a more uniform national financial system, specifically bankers and creditors who feared that the states would begin to indiscriminately issue their own money, thereby devaluing their assets. The foremost champion of the establishment of a strong central government was Alexander Hamilton (1755–1804), a New York lawyer and former Revolutionary War officer, who believed that republicanism would not endure and America could not survive as nation if the states were not united by a strong central government under which the states would assume a subordinate position (Murray 2007, 57).
The clash between the two camps grew more and more intense in what came to be known as the Federalist and Anti-Federalist debates. The controversy took shape in a series of pamphlets written in favor of and against the federal union.7 The most important documents endorsing a fortified union formed part of a series called The Federalist Papers, penned by Alexander Hamilton, James Madison and John Jay.8
14.2.1.2 Shay’s Rebellion (1786) Buoys the Federalist Movement
The fears of those favoring federalism were not unfounded, as the War of Independence had sunk the United States into a serious economic crisis, its most evident result being a chronic cash shortage. Some states sought to remedy this by issuing paper notes, which creditors were reluctant to accept as valid currency. In 1786, this attitude prompted the State of Rhode Island to pass legislation forcing creditors to accept its currency at its face value, which was lower and lower than its actual market value, sowing widespread discontent among the people of the state.
In that same year of 1786, western Massachusetts witnessed an armed uprising of farmers determined to abolish the courts which had ordered the execution of the mortgages on their properties. This pivotal revolt came to be known as Shay’s Rebellion.
Daniel Shay was a veteran of the Revolutionary War who had lost his farm when it was impossible for him to pay off his mortgage debt of 12 dollars. Desperate, Shay mustered a group of farmers who were facing the same situation and formed an armed band9 that on August 29, 1786, headed for the Supreme Court of the State of Massachusetts, located in Springfield. Shay and his men managed to paralyze the sessions of the court, but when they attacked the arsenal at Springfield on February 3, 1787, they were defeated by an army recruited by the State of Massachusetts and financed by the farmers’ creditors. Shay and his men took refuge in Vermont (Richards 2002, 159–162).
Shay’s Rebellion itself did not have dramatic consequences (Brown 1983, 598–615). However, it was decisive in swaying the Federal/Anti-Federal debate in favor of those advocating a stronger union.10 Among them was George Washington who, when hearing of the uprising, openly told his friends that in his opinion the Articles of Confederation government was driving the country towards anarchy.11 Washington was outraged by the fact that the State of Massachusetts, though it had the authority to muster an army to quell the uprising, lacked the financial resources to do so, and that its efforts to convoke a national Congress to obtain the necessary funds from the other states had been fruitless. Thus, had it not been for the private initiative of those who financed the army that defeated Shay, the rebellion would not have been put down. To prevent this kind of situation, Washington began to publicly argue that if the United States was to survive, it had no choice but to establish a strong federal government.
The Federalists ended up winning over public opinion, thanks in part to the newspaper coverage12 of Shay’s Rebellion and other similar incidents. Thus, in the 13 states more and more Americans came out in favor of reinforcing their union to more capably defend shared interests and prevent chaos, which could became widespread and wreak havoc with the new states’ financial systems.13
The problem was that there existed no unanimity when it came to how to reach this objective, as under the terms of the Articles of Confederation the unanimous consent of all the states was required to undertake their revision.
14.2.2 The Reopening of a Constitutional Convention
14.2.2.1 A Frustrated Attempt: The Annapolis Convention (September 1786)
The first step towards constitutional reform took place in March of 1785 when representatives of the States of Virginia and Maryland met at George Washington’s home to seek to resolve a dispute sparked by a navigation improvement project for the Potomac River (Dunn 2007, 93). At the end of the meeting an agreement was reached to convene a congress of all the states to discuss the possibility of jointly addressing affairs affecting commerce.
In January of 1786 Virginia’s General Assembly sent the other states a formal call for a congress to be held in Annapolis (Maryland) in September of that year. During the summer of 1786 several proposals for the revision of the Articles of Confederation were debated, like that drafted by the Massachusetts General Court. None of them, however, were sent to all the states. In the end the meeting at Annapolis took place in September of 1786, although it was disappointing for those who had hoped to reform the Articles of Confederation, as delegates from only five states attended, a number insufficient to propose changes to the states’ common constitutional system (Mcferran 2005, 149–153).
14.2.2.2 The Constitutional Convention of Philadelphia (May–September of 1787)
In spite of the failure of the Annapolis meeting the movement in favor of reforming the Articles of Confederation did not lose steam. The main proponent of reform was George Washington himself, who forcefully argued that the Congress must be granted powers sufficient for it to adopt and enforce national policies. Alexander Hamilton went even further, striving to convince the representatives of the 13 states that only drastic centralization could keep the new nation from falling apart. Hamilton proposed that a new convention be held in the city of Philadelphia to discuss constitutional reform, calling for the delegates attending this new body to be empowered to negotiate a sweeping plan of reform remedying the shortcomings of the Articles of Confederation.14 Hamilton’s plan was approved by the Congress and all the states, with the exception of Rhode Island (Bowen 2010, 13), sent delegates to the Philadelphia Convention.15
14.3 The Origins of the Presidential System
14.3.1 The Constitutional Convention Endorses the Principle of a Strong National Government
The Convention began its sessions on May 29, 1787. George Washington was unanimously elected its president,16 and the delegates immediately got down to work. The first issue discussed was the powers to be assigned the new national government. There was soon agreement that the central government should have the authority to levy taxes, regulate commerce between the states, and handle the country’s foreign policy. The states, then, lost the right to print their own currency, to sign international treaties, and to establish import or export tariffs. It was also agreed that the new central power would be empowered to maintain an army and a navy.17
14.3.2 The Placement of Limits on Federal Power: The Strict Application of the Division of Powers and the Establishment of a “Presidential” System
Though the majority clearly wished to bolster the power of the Congress, there were still widespread fears that doing so would mean a substantial reduction in the sovereignty of the states. Thus, defining and restricting the powers which would be assigned to the federal government became an essential issue for many delegates. Firstly, it was agreed that a district division of powers ought to be established. Inspired by the ideas of Montesquieu, Virginia representative James Madison proposed the creation of three independent branches: Legislative, Executive and Judicial.18
14.3.3 A “Great Compromise” for the Legislative Branch (Congress)
For the forming of the legislature Madison and the delegates from Virginia proposed that representation be proportional to each state’s population. This proposal was dubbed the “Virginia Plan”.19 This approach, however, meant that the smallest states would be completed dominated by the largest ones. To prevent this, the delegates from New Jersey proposed that each state have the same number of Congressional representatives, regardless of population (Bowen 2010, 104–108). In the end a compromise was reached (the Great Compromise), a solution worthy of Solomon: a bicameral legislature consisting of a House of Representatives to which each state would send delegates based on population, in such a way that the larger states would have more representatives; and a Senate in which all the states would have two senators (Wirls 2003). Both chambers would comprise the U.S. Congress.
14.3.4 A President Heading the Executive Branch
The other novel innovation was the creation of a powerful Executive: the president of the United States,20 who was assigned considerable power as a way of preventing a tyrannical concentration of power in the Legislative branch (Epstein 2008, 194). While the president’s term was limited to 4 years, he could be reelected.21 Here again there arose the need to mollify those who wished the president to be elected by the people and also respond to those who were concerned with each individual state having an impact on the election, even those with smaller populations (Gregg 1997, 34). The result was a sui generis system: instead of a single presidential election there would be 13 simultaneous ones. The people of each state would choose electors (equal in number to the sum of their representatives in the House and Senate) who would actually vote for the president. They were not free to vote for whomever they wished, however, as all of a state’s electors were required to vote for the candidate who had obtained the greatest number of votes in their state (Deskins et al. 2010, 2–3).
This system became even more complex after the formation of political parties, as these came up with a process of “primaries”, elections through which they nominated their candidate for the presidential election. The first political party in the history of the young nation was the Federalist Party of the United States, founded by Alexander Hamilton (1755–1804), who presided over it until his death (Murray 2007, 235).
14.3.5 The Separation of Powers as the Essence of the Presidential System
Both the Congress (Legislative branch), composed of the House of Representatives and the Senate, and the president (Executive branch) were chosen by the people and enjoyed the legitimacy granted them by the ballot box. As such, they were beholden to the people’s will, and had to cooperate to make decisions that reflected it. Curiously, this system in which both the Legislative and Executive branches played key roles and checked each other according to James Madison’s conception of the Republican government (Ferejohn 2005, 126–155), came to be called a “presidential system” because it stood in contrast and as an alternative to the Parliamentary system in England, in which the Executive, the “prime minister”, was determined by the party in control of the legislature. Another important difference between the two nations and systems was that in England the prime minister governed, while the state was represented by the king (the crown). In the American system the president of the United States was simultaneously the head of the state and the president of the government.
14.3.6 The Judicial Power as a Constitutional Referee: The Revolutionary Principle of “Judicial Review” as a Safeguard Against the Tyranny of the Majority
In addition to the Legislature (Congress) and the Executive (president) the Founding Fathers created a third power: the Judiciary, represented by a Federal Supreme Court made up of nine judges, nominated by the president and confirmed by the Congress. This judicial institution would ultimately turn out to be absolutely vital, as its main function became that of interpreting the federal Constitution—a role which proved pivotal given that the Constitution of 1787 contained only seven articles.22 As a product of consensus, the Constitution was a minimalist document. Thus, whole areas of the institutional framework of the new federal system were yet to be defined,23 such as the dual system of state and federal courts of justice (Abraham 1998, 151).
The Supreme Court’s function as the supreme interpreter of the federal Constitution took root only over time. In fact, it was asserted 14 years later through the famous ruling of Justice John Marshall, at that time the Chief Justice of the Supreme Court, as part of the decision handed down in the Marbury vs. Madison case (February 24, 1803). This historic verdict proved decisive in the construction of the federal regime, as for the first time the Supreme Court established the principle that the judiciary could determine whether laws were Constitutional (the principle of judicial review). The system of the “separation of powers” turned the Judicial branch into the “referee” determining the constitutionality of the government’s actions.24
14.4 A New Constitution for a New Federal State
14.4.1 Approval and Ratification of the Constitution
Four months after the first meeting of the Constitutional Congress, on September 17, 1787, the delegates had completed the final draft of what would ultimately be the Constitution of the United States of America.
The final document contained only seven articles, a result of its authors’ deliberate intention to create a very flexible instrument, destined to last over time in spite of the changes, challenges, and ups and downs which would inevitably occur in the relations between the states and the new federal government. Articles 1, 2 and 3 dealt with the Legislative, Executive and Judicial branches, respectively. Article 4 regulated relations between the states. Article 5 covered constitutional reform, and Article 6 included a series of miscellaneous stipulations, like those relative to the signing and ratification of treaties with other nations, or the requirements to hold public office. The conciseness of the federal Constitution has been, without any doubt, the key to its success and its longevity. Today it continues to be the oldest functioning constitution in the western world.
The last article of the Constitution, no. 7, stated that the document would take effect upon ratification by at least nine states.25 On September 28, 1787, the Constitution was submitted to the states for ratification. On June 21, 1788, New Hampshire became that ninth state (Maier 2010, 313) and the U.S. Constitution went into effect on March 4, 1789 (Schwartz 2013, 333). Across the Atlantic, 2 months later the Estates General was convened in France, setting in motion a process that would trigger the French Revolution.
14.4.2 A New Limit on Federal Power: The Bill of Rights
Virginia and New York ratified the federal Constitution just a few weeks after New Hampshire, but North Carolina and Rhode Island were still hesitant to sign it. To overcome their reluctance, James Madison suggested the possibility of introducing a set of changes that would be incorporated into the Constitution. The House of Representatives and the Senate ultimately approved 12 amendments that were to be appended to the Constitution rather than incorporated into the original document. The 12 amendments were sent to the states for ratification, but only 10 were ratified (Hickok 1991, 5). Their final ratification by Congress took place on December 15, 1791, by which time the last of the 13 states, Rhode Island, had endorsed them (May 29, 1790). These ten amendments to the U.S. Constitution would go down in history as the “Bill of Rights”.
The procedure that made possible the adoption of amendments represented an instrument through which the founding document could be adapted to address new circumstances. Over time, a series of legal and governmental questions have been resolved through the incorporation of new amendments, yielding the 27 today.26
14.4.3 The Principle of Term Limits
On March 4, 1789, the federal Constitution took effect, and on April 30, George Washington was elected the first president of the fledgling United States, going on to be reelected in 1793. At the close of his second term, however, he refused to stand for re-election (McDonald 1988, 177–186). Since then nearly every president followed his example and only stood for re-election once, the notable exception being Franklin Delano Roosevelt, elected for the first time in 1932 and reelected in 1936, 1940 and 1944—though his fourth term was cut short by his death on April 12, 1945. To prevent this from happening again, the 22nd Amendment to the Constitution was added (ratified on February 27, 1951), limiting presidents to only two terms in office: “No person shall be elected to the office of the President more than twice” (McDonald 1994, 166–171).
14.4.4 The Constitution as the New Nation’s Birth Certificate
With the ratification of the Constitution in 1789 the United States saw the culmination of a revolutionary process which had begun 11 years prior. Since 1783 there had been 13 states with 13 constitutions directly inspired by their respective colonial charters. In contrast, the federal government was something totally new, created ex novo, arising directly from the Constitution, a pact which has survived through the years, unscathed and in good health, though altered and refined through a series of amendments and Supreme Court decisions. It was the first new nation in the sense that it broke sharply with traditional sources of legitimacy (Lipset 2003, 11). The U.S. Constitution stands above any and all subsequent legislation, and judges can raise the question of a law’s constitutionality. It is largely for this reason that the United States of America continues to maintain the very same Constitution which established the new nation, a document representing a shining example of legal and constitutional longevity.
14.5 Relations Between the States and the Federal Government After 1789
The ratification of the federal Constitution and the election of George Washington did not bring an end to the debate between the Federalists and Anti-Federalists—that is, proponents of a powerful central government and those who wished to see the states retain the greatest possible levels and scope of power, respectively.27 Despite the ratification of the nation’s new Constitution the Anti-Federalists did not give up, and did all they could to defend the power and autonomy of the states in the face of federal power. As a consequence of their efforts, the unique characteristics of the different states were taken into account and respected not only in the system for the election of the president of the United States, but also in the formula for the composition of the two chambers of the Congress.
Federalism, however, continued to gain ground, expanding in three areas. Firstly, thanks to the establishment of the principle of judicial review, which authorized the Supreme Court of the United States to determine the “constitutionality” of a law. In this way, the Judicial power was designated as the guarantor and arbiter of Constitutional orthodoxy, standing above the powers engaged in the political fray: the Legislative and Executive. Secondly, the federal government was bolstered by the incorporation of new states into the union, which, from 1791 to 1959, went from 13 to 50. The union’s expansion process was no easy task, and would even trigger a devastating Civil War, when America’s southern slave states sought to secede from the Union, to protect their “states rights” (principally their slaveholding rights), from what they viewed as federal encroachment. The victory of the North (Union) definitively established the supremacy of federal power.28 Finally, the national government acquired more power vis-à-vis the states, as the restrictive interpretation of the Bill of Rights was discarded. Initially it was the states’ view that the fundamental rights and liberties included in the first ten amendments to the U.S. Constitution protected citizens from the federal government, but not from each state government, which could legislate within its jurisdiction without taking them into account. In the wake of the Northern victory in the Civil War, the scope of protection of the essential rights set down in the Constitution came to encompass the states as well. That is, the states, as powers subordinate to the federal government, were compelled to respect all the same rights which the latter was required to.
14.5.1 The Implementation of Judicial Review
Originally, during the crucial years from 1776 to 1787, in every state the general assumption tended to prevail that state legislatures were the sole judges of their own constitutional powers, and very few Americans believed that any state court had the authority to declare a law invalid on the grounds that it violated the U.S. Constitution (Nevins 1991, 168). At the Constitutional Convention in Philadelphia (1787–1789), however, there was a clear reaction to this uncontested supremacy of the state legislatures. In isolated cases, some state courts had asserted the right to deem a statute unconstitutional,29 but Madison did not wish to directly assign such power to the Judiciary, proposing the establishment of a Federal Council of Revision with the authority to nullify both state and federal bills as a way of countering the factious majorities in state legislatures. However, as Madison failed to win support for this Council at the Constitutional Convention, he would ultimately accept the Supreme Court as the institution of the federal government best suited to determine what laws were and were not constitutional (Hall et al. 2005, 601).
Upon the election of the Anti-Federalist Thomas Jefferson (1801–1809) as President of the United States, the federal government could have been weakened, as Jefferson was an avowed proponent of devolving power to the states in what he called the “Revolution of 1800”, featuring the Federalists’ defeat (McDonald 1995, 2). His intentions, however, were frustrated by the U.S. Supreme Court, as Chief Justice John Marshal (1801–1835) was a firm Federalist, who ably managed to invest the high court with a powerful and pivotal role within the system of American government.30
The turning point came with the famous Marbury vs. Madison case (1803), which established the principle of judicial review, according to which the Supreme Court could declare any law unconstitutional and suspend its enforcement.31 Thanks to this a political victory in congressional or presidential elections was not sufficient to change the principles upon which the federal union rested, as the Supreme Court guaranteed that the government’s laws and measures were always in accord with the Constitution. Placing the founding document “on a pedestal”, above the political melee, represented a great victory for the Federalists.32
14.5.2 From 13 to 50 States
When the original 13 states ratified the U.S. Constitution in 1791, the constitutional history of the United States had only just begun. As the years passed, new states were added to the union as the nation surged westward. This process began immediately, with the 1791 incorporation of the states of Vermont and Kentucky, and ended with the 1959 integration of Alaska and Hawaii. The process of the expansion of the United States of America is a fascinating phase of its constitutional history about which many are ignorant, but without studying this crucial aspect the consolidation of the Union and the presidential system cannot be understood.33
14.5.2.1 The Legal Principles Governing Westward Expansion: The Ownership of Western Land
Even before the War of Independence was over, representatives from 7 of the 13 states had expressed their intention to annex virgin lands to the west when Britain finally surrendered its claim to them, expansionist plans which were blocked when the other six, which did not have western borders, considered it unfair for their fellow states to be able to expand when they were not.34 Thus, an agreement was reached by which the expansion of the United States was to fall under the purview of the Congress, already the nation’s supreme legislative body according the Articles of Confederation regime (Lawson and Seidman 2004, 73–74), establishing the principle that in the western lands distinct states should be formed, to join the Union with “the same rights of sovereignty, freedom and independence as the other states”.35 The states which had once aspired to expand their borders ended up ceding their rights to Congress over a period of two decades; the first to do so was New York in early 1780, forcing Virginia and the others. The last state to cede its claims to Western lands was Georgia, which only did it in 1802.36
Congress was, therefore, charged with developing the procedure according to which new territories would be incorporated into the nation. This was no small task, as it called for maintaining the balance which had made the emergence of the federal union possible. The first attempt at legislation governing the expansion process, the Land Ordinance of 1784, would prove, however, a failure.
14.5.2.2 The Land Ordinance of 1784
The first attempt to regulate America’s territorial expansion process was the Land Ordinance of 1784 (April 23). Drafted by Thomas Jefferson, it was intended to become the first law governing the territories lying west of the existing states (Berkhofer 1988, 267–298). Passed under the Articles of Confederation government, the law ended up failing because it called for the formation of new states in the west according to a schedule that was considered too hurried by the most influential members of the ruling elite, who believed that a plan to survey and sell the western lands should be undertaken to secure badly needed funds, and that measures should be taken to defend the widely dispersed westerners from threats by Indians or other white settlers (Johnson 2009, 7). Moreover, Congress feared that a rapid increase in the number of states might send the new nation spinning into anarchy.
14.5.2.3 The Legal Regulation of the Sale of New Lands: The Land Ordinance of May 20, 1785
To avoid these problems, the Congress decided to restrict itself to regulating only the economic aspect of the measurement and sale of the new lands. To this end the Land Ordinance of 1785 (May 20), established the model for American territorial expansion, based on basic units of 6 square miles (about 9,600 m2, slightly less than a hectare),37 a new and revolutionary system of measuring and bounding the land (Hine and Faragher 2007, 42). Following the adoption of the Land Ordinance of 1785 Congress created a corps of geographers, who set about surveying western lands that very same year. The process went on for 161 years and only ended when there was no more land left to survey, in 1946, under the presidency of Harry Truman, after the end of World War II (Cazier 1976, 214).
This territorial division would prove essential, as it facilitated the United States’ evolution into a nation of small and medium-sized landowners.38 This, in turn, paved the way for the abandonment of censitary suffrage systems (under which affairs were dominated by great landowners, such as Washington and Jefferson), and the adoption of more democratic models based on universal suffrage, which definitively triumphed after the end of the Civil war (1865)—at least for men, as American women would not be granted the vote until after World War I (Keyssar 2009).
The addition of a large number of new landowners to the body politic made the election of 1828 a watershed in American politics, marking the first featuring mass participation, i.e. not controlled by members of the traditional, privileged gentry. The winner was Andrew Jackson, the victor in the first election featuring much of the phenomena that would characterize more modern electioneering: mudslinging, rallies, pandering, the grassroots mobilization of voters, leaflets, etc. Jackson was sworn in as the seventh President of the United States (1829–1837).39
14.5.2.4 The Public Status of the New Lands: The Northwest Ordinance (July 13, 1787)
Once the process of land parceling and sale had been undertaken by Congress it remained to establish the new lands’ public legal status, as the 1784 Land Ordinance had failed to pass. The representatives of the states were in agreement that none of the 13 founding states should be allowed to annex additional territory. Thus, it was necessary to determine how the new territories would be brought into the union as new states.
Based on this understanding a landmark law in the development of the United States was drafted: the Northwest Ordinance of 1787, a pivotal piece of legislation40 that predates even the Federal Constitution of 1787; the Ordinance was approved on July 13, 1787, while the Constitution was not completed until September 17, and was not ratified until June 21, 1788, entering into force on March 4, 1789. Hence, the Northwest Ordinance is widely considered a “constitutional” text (Duffey 1995, 929–968).
The Ordinance of 1787 was a logical extension of the Land Ordinance of 1785 (Hyman 2008, 18–34), designed to regulate the type of governments to be established in the new territories on the land which had been surveyed and sold. To prevent the excessive haste which the 1784 Ordinance had been criticized for fomenting, the 1787 act introduced the principle (Sections 3–12)41 that the new states, prior to achieving statehood, would be required to first pass through a provisional status as “territories”, during which they were to satisfy a series of conditions (Onuf 1990, 255). Once organized the territories were to petition Congress for entry as new American states, a status which would place them on equal footing with all the others.