Finally, two other procedural decisions made at the start would turn out to have an abiding influence on the deliberations in Philadelphia and the ways they would be regarded by posterity. The first was the decision that absolute secrecy must prevail, that “nothing spoken in the House be printed, or otherwise published, or communicated without leave.” There would be no journalists or spectators in attendance, sentries would be posted at the doors, and delegates were prohibited from discussing the debates in public or in correspondence.26
These restrictions were designed to ensure confidentiality and thereby promote the freer exchange of ideas during the debates. And based on the subsequent testimony of the delegates, there is good reason to believe that they did just that. But they ever after made the Constitutional Convention vulnerable to charges of conspiracy, corruption, and skullduggery. And since it is unimaginable in any modern context for such restricted conditions to exist for any political gathering charged with significant responsibility over matters of such consequence, the specter of conspiracy has understandably haunted all histories of the convention. Ironically, to the extent that the delegates at Philadelphia succeeded, their success was dependent on violating all of our contemporary convictions about transparency and diversity, which is one reason why their success could never be duplicated in our time.
The second decision was merely symbolic, but this is an instance when the word merely is not helpful. The venue chosen for the convention was the East Room of the redbrick Pennsylvania State House. Modern tourists are often surprised at the small size of the room, with its Windsor chairs arranged in arcs facing Washington’s high backed semi-throne, the tall windows with green drapes and small tables with green coverings. More a seminar room than an amphitheater, it created an atmosphere of intimacy that interacted nicely with the preferred policy of confidentiality and secrecy.27
Most significantly, it was the same room in which the Declaration of Independence had been debated and signed. No one at the time commented on the implications of that coincidence, but it is too glaringly obvious to be overlooked. Opponents of any new political framework to replace or significantly revise the Articles believed that doing so would constitute a repudiation of the core values of the American Revolution. By choosing the same city, the same building, even the same room where those values were first discovered and declared, the delegates were making a statement—whether they knew it or not—that whatever they produced should be regarded as a continuation rather than a rejection of “the spirit of ’76.” This made the convention a new chapter in a continuing story—not a break with the past but an expression of its full meaning. And no less a figure than Washington himself seemed to be nodding in agreement with this story line as he sat in that high-backed wooden chair.
All efforts to impose a monolithic set of motives on the assembled delegates at Philadelphia, whether economic or ideological, have been discredited. And the very effort to do so misses the most salient point, which is that the vast majority of delegates came as representatives of their respective states, so that no single interpretive category could do justice to their bafflingly complex angles of vision. What needs to be remembered and recovered is that no collective sense of an American identity yet existed in the populace at large. Even outright nationalists like Madison, Washington, and Hamilton recognized that they were arguing for a political framework that would consolidate the states into a union in which a truly national sense of allegiance would develop gradually over time. In effect, the national government they sought to establish would provide a political structure for a nation-in-the-making, thereby facilitating and accelerating the “making” process, much like an incubator for a newborn child.
Looked upon as a collective, the fifty-five delegates to the Constitutional Convention were surprisingly young—average age forty-four—and disproportionately well educated. Twenty-nine had college degrees, and the same number had studied law. Their educational backgrounds were more conspicuous than their wealth, making them more an intellectual than an economic elite. Thirty-five had served as officers in the Continental Army, and forty-two had served in the Continental or Confederation Congress.28
This was the most important political indicator of all, for it meant that a sizable majority of the delegates had had intimate experience with the inadequacy of the Articles as a makeshift government during and after the war. Army veterans could testify more poignantly than anyone else that the very structure of the state-based government under the Articles had relegated their sacrifices to oblivion. Whether you served in the Continental Congress or the Continental Army, you tended to understand more palpably how the current arrangement under the Articles was not working.
For the next fifteen weeks, from May 25 to September 17, an ever-shifting collection of delegates from twelve states met in general sessions, on appointed committees, and in informal gatherings at City Tavern. Important if unrecorded conversations also occurred at Robert Morris’s mansion on Market and Sixth Streets, where Washington was staying. An important procedural decision was made early on to conduct most debates in a committee-of-the-whole format, which enhanced the seminar-like atmosphere in which delegates could try out arguments, then change their minds after listening to different opinions, without being forced to register a formal vote.
Since it proved to be the most consequential political gathering in American history, historians, political scientists, and constitutional scholars have gravitated to this moment in great numbers, generating a massive body of scholarship almost designed to discourage the faint of heart. The earliest historians, elegantly synthesized by George Bancroft in the late nineteenth century, tended to cast a spiritual haze over the proceedings, describing the delegates under “divine guidance,” and the Constitution itself as a product of “the divine power which gives unity to the universe, and order and connection to events.” This supernatural emphasis was probably inevitable given the tendency of most new nations to shroud their origins beneath a mystical veil of elevated omniscience.29
The potency of the Progressive interpretive tradition in the first half of the twentieth century derived in great part from the easy exposure of such a mythical and hagiographic depiction as patriotic nonsense. What the Progressives proposed as an alternative perspective might be described as quasi-Marxist nonsense, but it at least had the advantage of demolishing the mystical haze surrounding the Constitutional Convention.30
Our current twenty-first-century perspective demands that we regard the convention as a secular rather than a spiritual occasion, but also recognize that any purely, or even primarily, economic understanding of the founders’ behavior does a gross injustice to their political motives and to the larger ideological issues at stake as they understood them. For if you go back to the correspondence of the most prominent nationalists on the eve of the Constitutional Convention, it becomes abundantly clear that Madison, Washington, Hamilton, and Jay, as well as Gouverneur Morris and James Wilson, had their eyes on something larger than their own balance sheets.
That something was the future of the United States as the world’s largest republic, poised to become an emerging nation rather than a tottering and disintegrating confederation. For six years the loose arrangement of sovereign states under the Articles had claimed to embody the core principles of the American Revolution, which were incompatible with a national government empowered to make domestic and foreign policy for all its citizens. The nationalists were making an argument that American independence had been the mere start of a political process that now had to continue if its full potential was ever to be realized. No less a figure than Washington fervently believed that the failure to create a sovereign national government would represent a repudiation of everything he had fought for. What was at stake, then, was nothing less than what the American Revolution meant, or had come to mean, and that was how all the most prominent nationalists thought about it.
There were two ghosts at the banquet, though they haunted the delibe
rations in decidedly different ways. The first, monarchy, was an ever-present evil, a word on everyone’s lips, a specter so sinister that both nationalists and confederationists felt obliged to register their dread of its reappearance in America in even the faintest form. Any robust expression of executive power was, therefore, forced to fight a constant rearguard action against accusations of monarchy. Madison’s proposal for an executive veto over state legislation was dead on arrival at the convention because it seemed almost designed to conjure up the ghastly image of George III imposing his presumptive power in arbitrary and capricious fashion. Since the American Revolution had supposedly ended forever such monarchical travesties, all discussions of executive power lived under a shadow of suspicion as a species of monarchy, the rough equivalent of a Trojan horse in the republican fortress.31
The debate over the executive took up more time and energy than any other issue at the convention, largely because the delegates could not agree on how much authority to place in the office; whether it should be a single person or a troika representing the northern, middle, and southern states; how long he should serve (a woman was unimaginable); and how he should be elected and impeached. The resolution in the Virginia Plan was elliptical on all those details, saying only that “a National Executive be instituted, to be chosen by the National Legislature for the term of ____ years.” If some form of that vague proposal had been accepted, the United States would have had a parliamentary system of government.32
But it was not. Instead, late in their deliberations the delegates invented that strange thing that continues to befuddle foreign observers called the Electoral College. Trying to follow the flow of the argument about executive authority over the course of the summer is an inherently impossible task, because there was no flow, just a series of erratic waves. Several delegates obviously wanted the office to be largely symbolic, noting that the title of president implied that his chief duty was merely to preside. The only moment of utter clarity came on June 18, when Hamilton rose to deliver a six-hour speech that his best biographer has called “brilliant, courageous, and completely daft.” In it he used the dreaded word, calling for “an elected monarch” who would serve for life. For the remainder of Hamilton’s career that speech was used against him as evidence of his dangerously monarchical instincts. Although it was becoming increasingly clear that the central goal of the convention was to reach a sensible accommodation between nationalists and confederationists, Hamilton’s six-hour harangue demonstrated that he was unwilling to play that political game.33
The other ghost at the banquet was slavery, which was simultaneously omnipresent and unmentionable. Lincoln subsequently claimed that the decision to avoid the word slavery in the founding document accurately reflected the widespread recognition that the “peculiar institution” was fundamentally incompatible with the values on which the American Revolution was based, so that the bulk of the delegates realized that any explicit mention of the offensive term would, over time, prove embarrassing.34
This was true enough, but the more palpable and pressing truth in the summer of 1787 was that slavery was deeply embedded in the economies of all states south of the Potomac and that no political plan that questioned that reality had any prospect of winning approval. Much like the big-state-small-state conflict, then, a sectional split was, from the beginning, built into the very structure of the convention, and some kind of political compromise was inevitable if the Constitution were to stand any chance of passage and ratification. Madison himself believed that slavery was the most elemental source of conflict. “The states were divided into different interests not by their difference in size,” he recalled later, “but principally from their having or not having slaves…. It did not lie between the large and small states, it lay between the Northern and Southern.”35
The crucial compromise was an agreement to avoid any direct discussion of the divisive issue and to use euphemisms like “that species of property” when the forbidden topic forced itself onto the agenda. The two most explicit decisions implicitly endorsing slavery were the agreement to count slaves as three-fifths of a person for purposes of representation in the House and a prohibition against ending the slave trade for twenty years, concessions to the Deep South, especially South Carolina, that appear horrific to our eyes but without which the Constitution almost certainly could never have come into existence.36
There were, to be sure, flashes of emotional honesty that exposed the depth of the sectional divide. Luther Martin of Maryland denounced slavery as “an odious bargain with sin, inconsistent with the principles of the revolution and dishonorable to the American character.” Gouverneur Morris pronounced slavery “a curse,” an anachronistic “vestige of feudalism” that would actually retard the economic development of the South, and “the most prominent feature in the aristocratic countenance of the proposed Constitution.” On the pro-slavery side, the most succinct statement came from Charles Cotesworth Pinckney of South Carolina: “South Carolina and Georgia cannot do without slaves.”37
Such statements accurately expressed the broadly shared recognition that slavery was, on the one hand, a cancerous tumor in the American body politic and, on the other, a malignancy so deeply embedded that it could not be removed without killing the patient, which in this case was a newly created American nation. As a result, the most salient piece of evidence is silence. No one proposed any provision condemning slavery and insisting that it be put on the road to extinction. And no one proposed that the Constitution contain language explicitly justifying or protecting slavery or defending its permanent place in American society.
The euphemisms and circumlocutions in the language of the Constitution accurately reflected the ambiguous and ambivalent mentality of the delegates. If there was one explosive device that could blow up the entire national enterprise, this was it, and the delegates knew it. Leadership, as they saw it, meant evading rather than facing the moral implications of the slavery question. Whether this was a failure of moral leadership or a realistic recognition of the politically possible can be debated until the end of time.
By transforming slavery from a moral to a political problem, the delegates made it susceptible to compromise, but this achievement came at a cost. Writing in his notebook on July 9, John Dickinson of Delaware expressed his personal disappointment that the moral question posed by slavery was being conveniently obscured: “Acting before the World, what will be said of this new principle of founding a Right to govern Freemen on a power derived from Slaves…. The omitting of the WORD will be regarded as an Endeavor to conceal a principle of which we are ashamed.”38
From the perspective of abolitionists fifty years later, the conscious decision to bury the slavery issue was a moral travesty that rendered the Constitution “a covenant with death.” It is clear that several delegates, like Dickinson, shared their moral concerns. But they chose to subordinate those concerns to the political priority of creating a national government that included the South. Hamilton, for example, who was a charter member of the Manumission Society in New York, never rose in debate to express his antislavery convictions because he knew the political consequences. Moral purity on this score would come at the cost of American nationhood. And if you lost that, all moral concerns would become irrelevant, because there would be no political framework to enforce them. Historians who have embraced a neoabolitionist critique of the Constitution need to come to terms with the intractability of that dilemma.
At an even deeper psychological level, the circumlocutions deployed for evasive purposes in the Constitution accurately captured the denial mechanisms that many of the southern delegates had developed in their daily lives as slave owners: ways of talking and even thinking designed to obscure the moral implications of their livelihoods and lifestyles. Twenty-five of the delegates owned slaves, including George Mason, who oversaw three hundred slaves at Gunston Hall and never freed them but incongruously delivered several passionate critiques of slavery at the convention.
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George Washington arrived in Philadelphia accompanied by three slaves, including his personal valet, Billy Lee, who stood behind his master’s chair throughout the convention, tending to his personal needs. One can only wonder what Billy Lee thought about the tortured debate over slavery. Or whether Washington wondered what Billy Lee was thinking. On the latter score, the likely answer is that Washington gave the matter no thought at all. And if he did, it would be the last thing he would ever talk about or record in his diary. The unofficial policy of silence at the convention on the all-important question of slavery was, to be sure, a political decision driven by a collective awareness of its explosive implications, but silence and willful obliviousness came naturally to most southern slave owners. It was the way they had learned to live their lives.
The crescendo moment in the convention occurred in mid-July. Madison had by then given up any hope for his federal veto of state laws, and it was now clear that the small states had the votes to block his other nonnegotiable principle, proportional representation in both branches of the legislature. Because Madison and the bloc of nationalists he was leading refused to budge on this core principle, the convention was gridlocked. A grim and somber mood began to settle in as the impasse seemed to suggest that the Philadelphia convention would go the way of Annapolis, meaning total and abject failure.39
Washington sensed the emerging pessimism, and in a letter to Hamilton, who had left the convention on June 30 to attend a meeting of the Manumission Society in New York, he confessed his doubts about lending his prestige to such a problematic venture: “I almost despair of seeing a favourable issue to the proceedings of the Convention, and do therefore regret at having any urgency in the business.” Franklin, also sensing that this was the critical moment, proposed that the delegates invite a chaplain to read a prayer before their deliberations. This seems strange coming from America’s most prominent deist, but it happened. Legend has it that Hamilton rose to oppose the proposal, saying he “saw no reason to call in foreign aid.” But this clever retort is surely apocryphal, since Hamilton was not present in Philadelphia at the time. It was now clear that the convention was on the verge of dissolution unless some compromise could be hammered out on the question of representation in both houses of the new Congress.40
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