The Constitutional Convention

The Constitutional Convention

The uprising in Massachusetts convinced leaders around the country to act. After years of goading by James Madison and other nationalists, delegates from twelve of the thirteen states — only Rhode Island declined to send a representative — met at the Pennsylvania state house in Philadelphia (Figure 2) in the summer of 1787. The delegates arrived at the convention with instructions to revise the Articles of Confederation.

The front of the clock tower at Independence Hall
Figure 2 — The clock tower at Independence Hall. Philadelphia, PA. by Albert E. Theberge, Wikimedia Commons is licensed under CC BY 2.0

The biggest problem the convention needed to solve was the federal government’s inability to levy taxes. That weakness meant that the burden of paying back debt from the Revolutionary War fell on the states. The states, in turn, found themselves beholden to the lenders who had bought up their war bonds. That was part of why Massachusetts had chosen to side with its wealthy bondholders over poor western farmers.

James Madison (Figure 3) however, had no intention of simply revising the Articles of Confederation. He intended to produce a completely new national constitution. In the preceding year, he had completed two extensive research projects — one on the history of government in the United States, the other on the history of republics around the world. He used this research as the basis for a proposal he brought with him to Philadelphia. It came to be called the Virginia Plan, named after Madison’s home state.

Portrait of James Madison
Figure 3 — James Madison by Gilbert Stuart, Wikimedia Commons is in the Public Domain

The Virginia Plan was daring. Traditional scholarship said that a republican form of government required a small and homogenous state. Citizens who were too far apart or too different could not govern themselves successfully. Conventional wisdom said the United States needed to have a very weak central government, which should simply represent the states on certain matters they had in common. Otherwise, power should stay at the state or local level. But Madison’s research had led him in a different direction. He believed it was possible to create “an extended republic” encompassing a diversity of people, climates, and customs.

The Virginia Plan, therefore, proposed that the United States should have a strong federal government. It was to have three branches — legislative, executive, and judicial — with power to act on any issues of national concern. The legislature, or Congress, would have two houses, in which every state would be represented according to its population size or tax base. The national legislature would have veto power over state laws.

Other delegates to the convention generally agreed with Madison that the Articles of Confederation had failed. But they did not agree on what kind of government should replace them. In particular, they disagreed about the best method of representation in the new Congress. Other issues they debated — including how the national executive branch should work, what specific powers the federal government should have, or even what to do about the divisive issue of slavery — revolved around the issue of representation.

For more than a decade, each state had enjoyed a single vote in the Continental Congress. Small states like New Jersey and Delaware wanted to keep things that way. The Connecticut delegate Roger Sherman, furthermore, argued that members of Congress should be appointed by the state legislatures. Ordinary voters, Sherman said, lacked information, were “constantly liable to be misled,” and “should have as little to do as may be” about most national decisions. Large states, however, preferred the Virginia Plan, which would give their citizens far more power over the legislative branch. James Wilson of Pennsylvania argued that since the Virginia Plan would vastly increase the powers of the national government, representation should be drawn as directly as possible from the public. No government, he warned, “could long subsist without the confidence of the people.”

Ultimately, Roger Sherman suggested a compromise. Congress would have a lower house, the House of Representatives, in which members were assigned according to each state’s population, and an upper house, which became the Senate, in which each state would have one vote. This proposal, after months of debate, was adopted in a slightly altered form as the “Great Compromise”: each state would have two senators, who could vote independently. In addition to establishing both types of representation, this compromise also counted a slave as three-fifths of a person for representation and tax purposes.

The delegates took even longer to decide on the form of the national executive branch. Should executive power be in the hands of a committee or a single person? How should its officeholders be chosen? On June 1, James Wilson moved that the national executive power reside in a single person. Coming only four years after the American Revolution, that proposal was extremely contentious; it conjured up images of an elected monarchy. The delegates also worried about how to protect the executive branch from corruption or undue control. They endlessly debated these questions, and not until early September did they decide the president would be elected by a special “electoral college.”

In the end, the Constitutional Convention proposed a government unlike any other, combining elements copied from ancient republics and English political tradition, but making some limited democratic innovations—all while trying to maintain a delicate balance between national and state sovereignty. It was a complicated and highly controversial scheme. (3)

George Washington speaking at the Constitutional Convention of 1787, signing of the U.S. Constitution.
Figure 4 — Washington at Constitutional Convention of 1787, signing of U.S. Constitution by Junius Brutus Stearns, Wikimedia Commons is in the Public Domain

Ratifying the Constitution

The convention voted to send its proposed Constitution to Congress, which was then sitting in New York, with a cover letter from George Washington. The plan for adopting the new Constitution, however, required approval from special state ratification conventions, not just Congress. During the ratification process, critics of the Constitution organized to persuade voters in the different states to oppose it.

Importantly, the Constitutional Convention had voted down a proposal from Virginia’s George Mason, the author of Virginia’s state Declaration of Rights, for a national bill of rights. This omission became a rallying point for opponents of the document. Many of these “Anti-Federalists” argued that without such a guarantee of specific rights, American citizens risked losing their personal liberty to the powerful federal government. The pro-ratification “Federalists,” on the other hand, argued that including a bill of rights was not only redundant but dangerous; it could limit future citizens from adding new rights.

Constitution of the United States
Figure 5 — Constitution of the United States, page 1 by Constitutional Convention, Wikimedia Commons is in the Public Domain

Over the next months, citizens debated the merits of the Constitution in newspaper articles, letters, sermons, and coffeehouse quarrels across America. The first crucial vote came at the beginning of 1788 in Massachusetts. At first, the Anti-Federalists at the Massachusetts ratifying convention probably had the upper hand, but after weeks of debate, enough delegates changed their votes to approve the Constitution narrowly. But they also approved a number of proposed amendments, which were to be submitted to the first Congress. This pattern — ratifying the Constitution but attaching proposed amendments — was followed by other state conventions.

The most high-profile convention was held in Richmond, Virginia, in June 1788, when Federalists like James Madison, Edmund Randolph, and John Marshall squared off against equally influential Anti-Federalists like Patrick Henry and George Mason. Virginia was America’s most populous state, it had produced some of the country’s highest-profile leaders, and the success of the new government rested upon its cooperation. After nearly a month of debate, Virginia voted 89 to 79 in favor of ratification.

On July 2, 1788, Congress announced that a majority of states had ratified the Constitution and that the document was now in effect. Yet this did not mean the debates were over. North Carolina, New York, and Rhode Island had not completed their ratification conventions, and Anti-Federalists still argued that the Constitution would lead to tyranny. The New York convention would ratify the Constitution by just three votes, and finally Rhode Island would ratify it by two votes — a full year after George Washington was inaugurated as president. (3)

Rights and Compromises

Although debates continued, Washington’s election as president (Figure 6), and the first eight years of functioning government during his administration, cemented the Constitution’s authority. By 1793, the term “Anti-Federalist” would be essentially meaningless. Yet the debates produced a piece of the Constitution that seems irreplaceable today. Ten amendments to the Constitution were added in 1791. Together, they constitute the Bill of Rights. James Madison, against his original wishes, supported these amendments as an act of political compromise and necessity. He had won election to the House of Representatives only by promising his Virginia constituents such a list of rights.

Portrait of George Washington standing
Figure 6 — Official Presidential portrait of George Washington by Gilbert Stuart,Wikimedia Commons is in the Public Domain

There was much the Bill of Rights did not cover. Women found here no special protections or guarantee of a voice in government. Many states would continue to restrict voting only to men who owned significant amounts of property. And slavery not only continued to exist; it was condoned and protected by the Constitution.

Of all the compromises that formed the Constitution, perhaps none would be more important than the compromise over the slave trade. Americans generally perceived the Atlantic slave trade (the process of shipping enslaved Africans to the Western Hemisphere) as more violent and immoral than slavery itself. Many Northerners opposed it on moral grounds. But they also understood that letting Southern states import more Africans would increase their political power. The Constitution counted each black individual as three-fifths of a person for purposes of representation, so in districts with many slaves, the white voters had extra influence. On the other hand, the states of the Upper South also welcomed a ban on the Atlantic trade because they already had a surplus of slaves. Banning importation meant slave owners in Virginia and Maryland could get higher prices when they sold slaves in America. States like South Carolina and Georgia, however, were dependent upon a continued slave trade.

New England and the Deep South agreed to what was called a “dirty compromise” at the Constitutional Convention in 1787. New Englanders agreed to include a constitutional provision that protected the foreign slave trade for twenty years; in exchange, South Carolina and Georgia delegates had agreed to support a constitutional clause that made it harder for Congress to pass commercial legislation. As a result, the Atlantic slave trade resumed until 1808 when it was outlawed for three reasons. First, Britain was also in the process of outlawing the slave trade in 1807, and the United States did not want to concede any moral high ground to its rival. Second, the Haitian Revolution (1791-1804), a successful slave revolt against French colonial rule in the West Indies, had changed the stakes in the debate. The image of thousands of armed black revolutionaries terrified white Americans. Third, the Haitian Revolution had ended France’s plans to expand its presence in the Americas, so in 1803, the United States had purchased the Louisiana Territory from the French at a fire-sale price. This massive new territory, which had doubled the size of the United States, had put the question of slavery’s expansion at the top of the national agenda. Many white Americans, including President Thomas Jefferson, thought that ending the external slave trade and dispersing the domestic slave population would keep the United States a white man’s republic and perhaps even lead to the disappearance of slavery.

The ban on the slave trade, however, lacked effective enforcement measures and funding. Moreover, instead of freeing illegally imported Africans, the act left their fate to the individual states, and many of those states simply sold intercepted slaves at auction. Thus, the ban preserved the logic of property ownership in human beings. The new federal government protected slavery as much as it expanded democratic rights and privileges for white men. (3)