Constitutions and Contracts: Was another new contract really necessary in 1787?

About this Item Title Independence Hall, Philadelphia, Pennsylvania Contributor Names Highsmith, Carol M., 1946-, photographer Created / Published [between 1980 and 2006] Subject Headings - United States--Pennsylvania--Philadelphia - America - Independence Hall Format Headings Transparencies--color--1980-2010. Genre Transparencies--Color--1980-2010 Notes - Digital image produced by Carol M. Highsmith to represent her original film transparency; some details may differ between the film and the digital images. - Title, date, and keywords provided by the photographer. - Credit line: Photographs in the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division. - Gift and purchase; Carol M. Highsmith; 2011; (DLC/PP-2011:124). - Forms part of the Selects Series in the Carol M. Highsmith Archive. Medium 1 transparency : color ; 4 x 5 in. or smaller. Call Number/Physical Location LC-HS503- 1050 (ONLINE) [P&P] Source Collection Highsmith, Carol M., 1946- Carol M. Highsmith Archive. Repository Library of Congress Prints and Photographs Division Washington, D.C. 20540 USA http://hdl.loc.gov/loc.pnp/pp.print Digital Id highsm 12311 //hdl.loc.gov/loc.pnp/highsm.12311 Library of Congress Control Number 2011630508 Reproduction Number LC-DIG-highsm-12311 (digital file from original) LC-HS503-1050 (color film transparency) Rights Advisory No known restrictions on publication. Online Format image Description 1 transparency : color ; 4 x 5 in. or smaller. LCCN Permalink https://lccn.loc.gov/2011630508

Independence Hall, Philadelphia, Pennsylvania (Credit: Carol M. Highsmith; Library of Congress Collection)

Learning Objectives

  • Identify the reasons for a new contract revising or replacing the Articles of Confederation.
  • Understand the controversies and compromises of the Constitutional Convention.
  • Distinguish between ratification and amendment.

If the Articles are not working, what do we do next?

Fifty-five delegates arrived at Philadelphia in May 1787 tasked with reworking the Articles of Confederation.  It was apparent that the very loose confederation of states and the weak central government would not work as a long term solution for governing the new nation. Throughout the long, hot Philadelphia summer, delegations from twelve states discussed, debated, and finally worked out a new blueprint for the nation–designed to resolve conflicts between small and large states, northern and southern states, and those favoring a strong national government with those arguing for state sovereignty.

Many delegates to what is now called the Constitutional Convention wanted to strengthen the role and authority of the national government but feared allowing too much centralized power. They intended to preserve state autonomy without preventing states from working collectively. They wanted to protect the political rights of all free men but also feared mob rule. Delegates replaced the Articles of Confederation rather than make revisionsAlthough James Madison is known as the father of this new contract–the Constitution–George Washington’s support gave the convention and the Constitution hope of success due to his perceived sense of fairness, his overall credibility, and his reputation as a non-partisan leader. 

After rejecting a monarchy and living with the weaknesses of the government set up under the Articles of Confederation during the revolutionary period, the delegates opted for a new system with a stronger national government balanced by state and local power. The new structure would employ separation of power as well as checks and balances between branches (legislative, executive, and judicial). Division of power between branches of government and between the federal and state governments, slavery, trade, taxes, foreign affairs, representation, and even the procedure to elect a president were just a few of the contentious issues of the Convention.  Diverging plans, strong egos, regional demands, and states’ rights made solutions difficult. Five months of debate, compromise, and creative strategies produced a new constitution creating a federal representative republic with a stronger national government than existed under the Articles of Confederation, leaving considerable power with the state governments.

Ten months of public and private debate were required to secure ratification by the minimum nine states. Even then Rhode Island and North Carolina held out until after the adoption of a Bill of Rights.

Consider the Original

Benjamin Franklin portrait

“For we are sent hither to consult not contend, with each other; and Declaration of a fix’ Opinion, and of determined Resolutions never to change it, neither enlighten nor convince us.”

Let’s decipher this statement… Franklin says they come to the convention to consult on important issues and not to be contentious or argumentative with each other. Individuals who have declared their opinions to be fixed and unchangeable are not there to consult; and, they are also not likely to persuade others to their point of view when they approach all discussion from this contentious or argumentative position.

Benjamin Franklin, Speech in Congress, June 11, 1787[1] (Credit: Joseph-Siffrede Duplessis, Prints and Photographs Division of the Library of Congress)

No decision about structure, function, or agenda for the new Republic’s government was easy. Delegates from small states did not want their interests pushed aside by populous states like Virginia. Everyone was concerned about slavery, no matter which side of this contentious issue was supported. Representatives from southern states worried that delegates from free states might try to outlaw slavery nationwide. Conversely, free states feared southerners might attempt to make slavery permanent. They all agreed on the election of George Washington, former commander of the Continental Army and hero of the American Revolution, to chair the convention.  A core question needed to be answered.  If you intend to implement a representative republic, how do you represent all states and citizens in a fair and equitable manner regardless of the geographical size or population of each state?

Howard Chandler Christy's interpretation of the signing of the Constitution, painted in 1940. At the Architect of the Capitol at https://www.aoc.gov/art/other-paintings-and-murals/signing-constitution.

Howard Chandler Christy’s interpretation of the signing of the Constitution, painted in 1940. (Credit: Architect of the Capitol at https://www.aoc.gov/art/other-paintings-and-murals/signing-constitution)

How do you organize representation in a republic?

The Constitution consists of a preamble and seven articles. The first three articles divide the national government into three branches—the legislative branch, the executive branch, and the federal judiciary—and describe the powers and responsibilities of each, while establishing a government based upon separation of powers. In Article I, ten sections describe the structure of Congress, the basis for representation for both the House of Representatives and the Senate, the requirements for serving in Congress, the length of Congressional terms, and the powers of Congress taken together and separately for each chamber. The national legislature created by Article I reflects the compromises reached by the delegates regarding many issues discussed at the convention. Article I is much longer than the other articles describing the executive and judicial branches because the delegates were particularly concerned about lawmaking functions.

Miniature Portrait of James Madison Alongside a Portion of Notes on the Virginia Plan.

Miniature Portrait of James Madison Alongside a Portion of Notes on the Virginia Plan. (Credit: modification of images from the Library of Congress)

[2]

James Madison came to the convention prepared. Following months of preparation and research, he developed an initial working draft of a governmental structure that was officially submitted by the Virginia delegation during the opening days of the convention. In addition to the suggestion to create some form of national executive, the delegates from Virginia called for a bicameral legislature consisting of two chambers, with a state’s representatives in each chamber based on the state’s population. The plan assumed that the national government would have greater powers and it would be wise to further divide legislative power between two chambers, creating a second chamber we now call the Senate. Delegates from small states objected to this Virginia Plan and offered another proposal, the New Jersey Plan.

Consider the original

The Debates in the Federal Convention of 1787; Tuesday, June 26

by James Madison

Mr. MADISON. In order to judge of the form to be given to this institution, it will be proper to
take a view of the ends to be served by it. These were,—first, to protect the people against their
rulers; secondly, to protect the people against the transient impressions into which they
themselves might be led. A people deliberating in a temperate moment, and with the experience
of other nations before them, on the plan of government most likely to secure their happiness,
would first be aware, that those charged with the public happiness might betray their trust. An
obvious precaution against this danger would be, to divide the trust between different bodies of
men, who might watch and check each other. In this they would be governed by the same
prudence which has prevailed in organizing the subordinate departments of government, where
all business liable to abuses is made to pass through separate hands, the one being a check on the
other. It would next occur to such a people, that they themselves were liable to temporary errors,
through want of information as to their true interest; and that men chosen for a short term, and
employed but a small portion of that in public affairs, might err from the same cause. This
reflection would naturally suggest, that the government be so constituted as that one of its
branches might have an opportunity of acquiring a competent knowledge of the public interests. [3]

This infographic shows a comparison between the Virginia Plan on the left and the New Jersey Plan on the right. It depicts the type of legislature, representation, and role of the national government for each plan. In the Virginia Plan, the legislature is bicameral, representation is population based with a higher population yielding more representation, and the role of national government is to legislate for states and veto state law. In the New Jersey Plan, the legislature is unicameral, representation is state based with each state equally represented, and the role of national government is to provide defense but not override state authority.

As evidence the founders were concerned over the future under a weak alliance of states, or confederation, examine Alexander Hamilton’s concerns about state rivalry and dissension in Federalist No. 6.

Consider the Original

In Federalist  No. 6, Alexander Hamilton states…

I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind–those which will in all probability flow from dissensions between the States themselves […] who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.

The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power or the desire of pre-eminence and dominion–the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification.[4]

Hamilton goes on to support his position with numerous historical examples of the weakness of confederations. Hamilton speaks eloquently of “dissensions between the States,” which is evidenced in the controversy over representation.[5]  Ultimately, compromise was achieved.

The Connecticut or Great Compromise (suggested by Roger Sherman of Connecticut) effectively combined the New Jersey and Virginia Plans–a bicameral (two chambered) legislative body with a Senate where each state, regardless of size or population, received equal representation (2 senators for each state) and a House of Representatives where each state’s population was counted to ensure proportional representation (total number of representatives divided proportionally between the states based on total population).

Painting of Roger Sherman. Image: Courtesy of The National Portrait Gallery, Smithsonian Institution at The National Archives at https://www.archives.gov/founding-docs/founding-fathers-connecticut#sherman.

Painting of Roger Sherman. (Credit: Courtesy of The National Portrait Gallery, Smithsonian Institution at The National Archives)

The Great Compromise that determined the structure of Congress soon led to another debate. When states took a census of their population for the purpose of allotting House representatives, should slaves be counted? Southern states were adamant that they should be, while delegates from northern states were vehemently opposed, arguing that representatives from southern states would not represent the interests of enslaved people. If slaves were not counted, however, southern states would have far fewer representatives in the House than northern states did. For example, if South Carolina were allotted representatives based solely on its free population, it would receive only half the number it would have received if slaves, who made up approximately 43 percent of the population, were included.[6]

How do we reconcile slavery and unalienable rights?

Slavery was another fundamental division separating states. Many delegates believed slavery contradicted the ideals of the Declaration of Independence. How can you reconcile the idea of unalienable rights with the notion that some human beings are property? None of the southern states had abolished slavery and none wanted the new Constitution to interfere. Southern states developed their economy with a dependence on slavery–the cheapest possible labor.  Other states hoped to abolish slavery entirely.  Again, pragmatic compromise effectively maintained the institution of slavery and pushed the controversy off to a future reckoning.

The three-fifths compromise allowed slaves to be taxed as property and counted as population for purposes of a state’s representation in the government. This compromise resolved the impasse without truly satisfying anyone. For purposes of congressional representation, slave-holding states could count all their free population, including free African Americans and 60 percent (three-fifths) of their enslaved population. To mollify the north, the compromise allowed counting 60 percent of a state’s slave population for federal taxation, although no such taxes were ever collected. Another compromise granted Congress the right to impose taxes on imports in exchange for a twenty-year prohibition on laws attempting to ban the importation of slaves to the United States, which would hurt the economy of southern states more than that of northern states. Because the southern states, especially South Carolina, had made it clear they would leave the convention if abolition were attempted, no serious effort was made by the framers to abolish slavery in the new nation, even though many delegates disapproved of the institution.

This graphic shows two boxes (Proposal 1 on the left and Proposal 2 on the right) with an arrow from each box that points downward to one box (Three-fifths Compromise) underneath the two top boxes. In Proposal 1, 5 citizens equal 5 votes, and 5 slaves equal 5 votes. In Proposal 2, 5 citizens equal 5 votes, and 5 slaves equal 0 votes. In the Three-Fifths Compromise, 5 citizens equal 5 votes, and 5 slaves equal 3 votes.

Consider a Discussion of the Original

The Library of Congress in Creating the United States: Convention and Ratification notes,

On August 21 the debate over the issue of commerce became very closely linked to another explosive issue–slavery. When Luther Martin of Maryland proposed a tax on slave importation, the convention was thrust into a strident discussion of the institution of slavery and its moral and economic relationship to the new government. John Rutledge of South Carolina, asserting that slavery had nothing at all to do with morality, declared, “Interest alone is the governing principle with nations.” Roger Sherman of Connecticut was for dropping the tender issue altogether before it jeopardized the convention. George Mason of Virginia expressed concern over unlimited importation of slaves but later indicated that he also favored federal protection of slave property already held. This nagging issue of possible federal intervention in slave traffic, which Sherman and others feared could irrevocably split northern and southern delegates, was settled by, in Mason’s words, “a bargain.” Mason later wrote that delegates from South Carolina and Georgia, who most feared federal meddling in the slave trade, made a deal with delegates from the New England states. In exchange for the New Englanders’ support for continuing slave importation for 20 years, the southerners accepted a clause that required only a simple majority vote on navigation laws, a crippling blow to southern economic interests.

The bargain was also a crippling blow to those working to abolish slavery. Congregationalist minister and abolitionist Samuel Hopkins of Connecticut charged that the convention had sold out: “How does it appear . . . that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorize them to enslave their fellow men . . . Ah! these unclean spirits, like frogs, they, like the Furies of the poets are spreading discord, and exciting men to contention and war.” Hopkins considered the Constitution a document fit for the flames.

On August 31 a weary George Mason, who had 3 months earlier written so expectantly to his son about the “great Business now before us,” bitterly exclaimed that he “would sooner chop off his right hand than put it to the Constitution as it now stands.”[7]

The Constitution contained protections for slavery. Article I postponed the abolition of the foreign slave trade until 1808 (the importation clause); and, in the interim, those in slaveholding states were allowed to import as many slaves as they wished.[8]

Furthermore, the Constitution placed no restrictions on the domestic slave trade, so residents of one state could still sell enslaved people to other states. Article IV of the Constitution—which, among other things, required states to return fugitives to the states where they had been charged with crimes—also prevented slaves from gaining their freedom by escaping to states where slavery had been abolished–clause 3 of Article IV (known as the fugitive slave clause) allowed slave owners to reclaim their human property in the states where slaves had fled.[9]

The Constitution also gave the federal government control over all “Territory or other Property belonging to the United States.” This would prove problematic when, as the United States expanded westward and population growth led to an increase in the power of the northern states in Congress, the federal government sought to restrict the expansion of slavery into newly acquired territories. Realizing that flaws in the Articles of Confederation could harm the new country and recognizing that the Articles could not easily be revised as originally intended, delegates from the states who met in Philadelphia from May through September 1787 set about drafting a new governing contract. The United States that emerged from the Constitutional Convention in September was not a confederation.  It was a federal republic with a strengthened national government. Congress had been transformed into a bicameral legislature with additional powers, and a national judicial system had been created. A distinct single executive was created. Moreover, each of these functions, the law-making function, the law-implementing function, and the law-interpreting function were assigned to separate branches of government–separation of powers.

To satisfy the concerns of those fearing a strong central government, the framers of the Constitution created a system with separation of powers and checks and balances. Although such measures satisfied many, concerns still lingered that the federal government remained too powerful.

chart of constitutional convention decisions categorized by congress, president, judiciary, federalism and slavery.
link to learning
A growing number of institutes and study centers focus on the Constitution and the founding of the republic. Examples such as the Institute for the American Constitutional Heritage and the Bill of Rights Institute have informative public websites with documents and videos. Another example is the National Constitution Center that also holds programs related to aspects of the enduring U.S. Constitution.  You can also access a free-online course offered by Hillsdale College at Constitution 101: The Meaning and History of the Constitution.

Questions to Consider

  1. How was the controversy over representation resolved?

  2. Why was slavery not abolished with the Constitution?

  3. What does separation of powers mean?

Terms to Remember

bicameral legislature–a legislature with two houses, such as the U.S. Congress

equal representation–legislative representatives for each state to be exactly equal regardless of population

federal–a structure of government in which power is divided between state governments and a national government

Great Compromise–a compromise between the Virginia Plan and the New Jersey Plan that created a two-house Congress; representation based on population in the House of Representatives and equal representation of states in the Senate

New Jersey Plan–a plan that called for a one-house national legislature; each state would receive one vote

proportional representation–legislative representatives for each state based upon the state’s population rather than geographical size or any other factor

separation of powers–the sharing of powers among three separate branches of government

Three-Fifths Compromise–a compromise between northern and southern states that called for counting of all a state’s free population and 60 percent of its slave population for both federal taxation and representation in Congress

unicameral–a legislature with only one house, like the Confederation Congress or the legislature proposed by the New Jersey Plan

Virginia Plan–a plan for a two-house legislature; representatives would be elected to the lower house based on each state’s population; representatives for the upper house would be chosen by the lower house


  1. (emphasis added--revised from The Library of Congress--Wise Guide: Who's the Father of the Constitution? at http://www.loc.gov/wiseguide/may05/constitution.html and Creating the United States: Convention and Ratification at https://www.loc.gov/exhibits/creating-the-united-states/convention-and-ratification.html)
  2. Presented to the Library in September 1976 by Dr. Winthrop M. Leeds of Pittsburgh, Pa., on behalf of the Leeds-Hay family, descendants of Madison's sister, Nelly Conway Madison Hite. At the Library of Congress at https://www.loc.gov/item/95522332/ and “The Virginia Plan of Government” in James Madison. Notes of Debates in the Federal Constitutional Convention, May 29, 1787. Manuscript. James Madison Papers, Manuscript Division, Library of Congress (056.01.02) [Digital ID# us0056_01] http://www.loc.gov/exhibits/creating-the-united-states/Constitution/Ratification/Assets/us0056_01_enlarge.jpg.
  3. Excerpt from The National Archives, Founders Online at https://founders.archives.gov
  4. Alexander Hamilton, Federalist 6, The Federalist Papers (complete text at the National Archives at usa.gov)https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-6
  5. Alexander Hamilton, Federalist 6, The Federalist Papers (complete text at the National Archives at usa.gov)https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-6
  6. U.S. Department of Commerce. Bureau of the Census. 1790. Statistical Abstract of the United States. Washington, DC: Department of Commerce.
  7. http://www.loc.gov/exhibits/creating-the-united-states/convention-and-ratification.html
  8. U.S. Const. art. I, § 9.
  9. U.S. Const. art. IV, § 2.