by Jill Lepore
Most states arranged a government of three branches, with a governor as executive, a superior court as judicial, and a Senate and House of Representatives as legislative. But some states, attempting to correct for colonial arrangements, in which a royally appointed governor and his appointed council wielded the preponderance of power over a weak elected assembly, granted the greatest weight to lower houses of the legislature rather than to upper houses or to an executive. Pennsylvania’s constitution, like its Quakers, was the most radical, and, in the eyes of many observers, alarmingly democratic. It called for annual elections, no governor, and a unicameral legislature whose members served limited terms. Any proposed law had to be printed and distributed to the people, who would have a year to consider it before the legislature voted.15
The states’ constitutions were political experiments in more ways, too. The Declaration of Rights in Vermont’s 1777 constitution specifically banned slavery: men might be indented as servants till the age of twenty-one, or women till the age of eighteen, but no one past that age could be held in bondage. (This provision would have made Vermont the first state to abolish slavery, except that in 1777 Vermont was not a state but an independent republic; it would not join the United States until 1791.)
In 1781, Bett, a slave in Massachusetts whose husband had fought and died in the war, filed a suit in which she argued that the state’s new constitution had abolished slavery. Bett’s owner, John Ashley, was a local judge. She’d heard him talking about natural rights with twenty-six-year-old Theodore Sedgwick, one of his law clerks. When Ashley’s wife tried to strike Bett’s sister with a kitchen shovel, Bett blocked the blow and was badly burned. Fleeing, she went to Sedgwick and decided, with his help, to sue for her freedom. “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness,” Adams had written, in Article I of the Massachusetts Constitution’s Declaration of Rights. Citing Adams, Bett won her case and her liberty and gave herself a new name: Elizabeth Freeman.16
Two years later, the Massachusetts Supreme Judicial Court formally ruled that slavery was inconsistent with the state’s constitution, adding, “Is not a law of nature that all men are equal and free? Is not the laws of nature the laws of God? Is not the law of God then against slavery?” The next year, Pennsylvania’s 1775 Society for the Relief of Free Negroes Unlawfully Held in Bondage renamed itself the Pennsylvania Society for Promoting the Abolition of Slavery, and a judge in Vermont ruled in favor of a runaway slave whose master had produced a bill of sale proving his ownership: the judge said in order to retain his property in the form of another man he’d have to provide a bill of sale from “God Almighty.”17
Inevitably, some state constitutions worked better than others. What clearly didn’t work well were the Articles of Confederation, which had been hastily drawn up by the Continental Congress for the purpose of waging war against Britain, and even this they did not do well (regiments went unfed, soldiers unpaid, veterans unpensioned). Drafted in 1777, the Articles weren’t ratified by the states until 1781—the delay was the result of the states’ competing claims to western land—and even after the Articles were adopted, those claims remained largely unresolved. Efforts to revise the Articles proved fruitless, even though the Continental Congress had no standing to resolve disputes between states nor any authority to set standards or to regulate trade. The new nation was riddled, as a result, with thirteen different currencies and thirteen separate navies.
Most urgently, Congress lacked the authority to raise money, which it needed both to make good on its debts and to pay for troops in the Northwest Territory, a swath west of the Alleghenies, north of the Ohio River, and east of the Mississippi that the federal government had acquired from the states. The 1783 Treaty of Paris had required that the states repay their debts, and when the states defaulted on those debts, Great Britain threatened to default on a commitment, also made under the terms of the peace, to surrender its northwestern forts—Oswego, Niagara, and Detroit—to the United States.
The value of paper currency fluctuated wildly, and by the end of the Revolutionary War, money printed on behalf of the Continental Congress had become nearly worthless. Even if Congress had fully possessed the power to tax, how to calculate the tax burden of each state remained unsettled. Should each state pay in proportion to the size of its population or in proportion to its property? In much of the country, one kind of property took the form of people. For purposes of taxation, then, would slaves count as people or as property? In 1777, Pennsylvania’s Samuel Chase had argued that only white inhabitants should count as people because, legally, blacks were no more people “than cattle.” This point seemed so essential to South Carolina’s Thomas Lynch that he had threatened that “if it is debated, whether their slaves are their property, there is an end of the confederation,” whereupon Benjamin Franklin made the wry observation that there was one plain way to tell the difference between people and property: “sheep will never make any insurrections.”18
In 1781 and again in 1783, Congress tried to revise the Articles so as to grant itself authority to collect taxes on imports. This led to a return to the original debate about how to calculate each state’s tax burden: by the number of inhabitants or by the value of land. The value of land was difficult to calculate—acreage alone is a poor guide, since a field is worth more than a swamp—and, as Adam Smith had argued in The Wealth of Nations, “the most decisive mark of the prosperity of any country is the increase of the number of its inhabitants.” Population seemed both easier to calculate and a more sensible measure, for purposes not only of taxation but also of representation. This led to a compromise, involving a fraction. A committee on revenue proposed that “two blacks be rated as equal to one freeman.” Other proposals followed, until “Mr. Madison said that in order to give a proof of the sincerity of his professions of liberality, he would propose that Slaves should be rated as 5 to 3.”
It was very nearly arbitrary, this mathematical formula that would determine the course of American elections for seven decades. At the time, it was also moot: it was never implemented because the state legislatures refused to ratify any revenue-raising amendments.19 But the proposed ratio—three to five—was not forgotten.
The confederation limped along, weak and hobbled. France and Holland pressed for payment of debts—in real money, not the paper promises on which the Republic floated. “Not worth a continental,” a phrase used to describe the paper currency printed by Congress, entered the lexicon. Congress was unable to pay its creditors and, by 1786, the continental government was nearly bankrupt. The states, too, were in distress; they could levy taxes, but they couldn’t reliably collect them. Massachusetts had levied taxes to retire the state’s war debt; farmers who failed to pay could have their property seized and auctioned. Many of those farmers had fought in the war, and, beginning in August 1786, they decided to fight again: well over a thousand armed farmers in western Massachusetts, angry and alienated and led by a veteran named Daniel Shays, protested the government, blockading courthouses and seizing a federal armory.20
It seemed as if the infant nation might descend into civil war, beginning an unending cycle of revolution. “I wish our Poor Distracted State would atend to the many good Lessons” of history, Jane Franklin wrote to her brother, and not “keep always in a Flame.”21 Madison feared the rebellion would spread all the way to Virginia. Washington began to wonder whether the nation needed a king after all, writing to Madison, “We are fast verging to anarchy and confusion!” As Madison reported to Jefferson, Shays’s Rebellion had “tainted the faith” of even the most committed republicans.22
A last-ditch effort to restore order by revising the Articles of Confederation was scheduled to begin on September 11, 1786, in Annapolis, at a special convention of deleg
ates that included Madison, who had probably been behind the resolution to convene the meeting. To prepare, he threw himself into his reading of political history. He’d been assembling a library. In 1785, Jefferson shipped him crates of books from Paris. “Since I have been at home I have had leisure to review the literary cargo for which I am so much indebted to your friendship,” he wrote to Jefferson in March 1786, reporting that Virginia had so much snow that winter that the tops of the Blue Ridge Mountains were still white. While the snow melted that spring, Madison composed a long essay called “Ancient & Modern Confederacies,” an assessment of all the confederated governments he could discover in his reading: their structure, their strengths, and, above all, their weaknesses.23
It had been an unusually wet spring. Madison left Virginia in summer and wended through fields of sodden crops of wheat and rye. He rode all the way to New York on business before turning around to head back down to Maryland, still mulling over his reading, and giving Jefferson still more instructions for books he’d like to add to his library. “If you meet with ‘Graecorum Respublicae ab Ubbone Emmio descriptae,’ Lugd. Batavorum, 1632, pray get it for me,” he pressed him.24
A road-weary Madison arrived in Annapolis in September vastly discouraged. So frayed was the spirit of union and so weak was the federal government that delegates from only five of the thirteen states turned up for the convention. They met at George Mann’s tavern, a six-gabled brick hotel. Madison stabled his horse in Mann’s barn. Without anything close to a quorum, twelve men from five states agreed to a resolution drafted by Alexander Hamilton of New York that delegates—ideally from all thirteen states—would gather in Philadelphia the next year “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”25
If more delegates had turned up for the Annapolis Convention, they’d most likely have proposed a single amendment to the Articles, granting Congress the authority to raise revenue. The bad turnout, ironically, opened the possibility for more sweeping action. Still, when the resolution reached Congress, which met, then, in New York, Congress failed for weeks to consider it. Arguably, it was only the course of events in Massachusetts that spurred Congress to act. In January 1787, the governor of Massachusetts sent a three-thousand-man militia across the state in an attempt to suppress Shays’s Rebellion and regain the federal armory (all of this without any authority from the federal government). The state instituted martial law. In New York, Congress finally acted, approving of the proposed Philadelphia convention “for the sole and express purpose of revising the Articles of Confederation.”26 No one said anything about drafting a constitution.
James Madison took copious notes on the proceedings of the constitutional convention. After Annapolis, Madison went home to Virginia and resumed his course of study. In April of 1787, he drafted an essay called “Vices of the Political System of the United States.” It took the form of a list of eleven deficiencies, beginning with “1. Failure of the States to comply with the Constitutional requisitions. . . . 2. Encroachments by the States on the federal authority. . . . 3. Violations of the law of nations and of treaties.” And it closed with a list of causes for these vices, which he located primarily “in the people themselves.” By this last he meant the danger that a majority posed to a minority: “In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?”27 What force restrains good men from doing bad things? Honesty, character, religion—these, history demonstrated, were not to be relied upon. No, the only force that could restrain the tyranny of the people was the force of a well-constructed constitution. It would have to be as finely wrought as an iron gate.
II.
BENJAMIN FRANKLIN, who was not done with his usefulness, spent the early days of May 1787 waiting for the laggard delegates to arrive and attending to his correspondence. His sister Jane wrote from Boston that she’d been reading about him. “I wanted to tell you how much Pleasure I Injoy in the constant and lively mention made of you in the News papers,” she wrote, full of pride. Franklin was eighty-one years old; Jane was seventy-four. The news of his flurry of activity, she told him, winking, “makes you Apear to me Like a young man of Twenty-five.”28
Franklin was the oldest of the seventy-five men who had been elected to represent twelve states at the convention. (Rhode Island, unwilling to grant the necessity of the meeting, refused to send a delegation.) Half of the delegates were lawyers. Nineteen delegates owned slaves. Only fifty-five showed up, and, since they came and went, there were usually only about thirty men on hand on any given day. When, on May 14, the day the convention was to begin, hardly any of the delegates had arrived, Madison blamed the weather.
Aside from Franklin and Madison, two more members of the Pennsylvania delegation, Gouverneur Morris and James Wilson, were already in town, and so were two more members of the Virginia delegation: George Washington and Edmund Randolph. These six men met on the night of May 16 at Franklin’s newly enlarged house, its growth a measure of his own rise. As he explained to his sister, he’d built an addition and installed a door in his bedroom by which he could enter directly into his library, even in slippers and robe. “When I look at these Buildings, my dear Sister, and compare them with that in which our good Parents educated us, the Difference strikes me with Wonder,” he wrote to her, remembering the tiny wooden house on the crooked street of Boston where they’d been born, in a smaller America.29
That night, by the light of candles in Franklin’s dining room, the six early-comers to the convention agreed that, instead of merely revising the Articles, which were little more than a treaty of alliance among sovereign states, the convention ought to devise a national government. The next day, Madison set to work drafting what became known as the Virginia Plan. Franklin returned to his correspondence. “We are all well, and join in Love to you and yours,” he wrote to his sister.30 He pondered the state of the Union. His sister had one piece of advice. “I hope with the Asistance of such a Nmber of wise men as you are connected with in the Convention you will Gloriously Accomplish, and put a Stop to the nesesity of Dragooning, & Haltering, they are odious means,” she wrote, urging her brother to support an end to the draft and capital punishment. “I had Rather hear of the Swords being beat into Plow-shares, & the Halters used for Cart Roops, if by that means we may be brought to live Peaceably with won a nother.” Franklin’s sister, like so many Americans, had suffered gravely during the war. She’d lost her home. One of her sons had died of wounds suffered during the Battle of Bunker Hill; another had gone mad. She’d had enough of guns and violence. Franklin tucked her letter away and governed his tongue.31
The convention began its work eleven days late, on May 25, when at last a quorum of twenty-nine delegates had arrived. Washington, almost as striking at fifty-five as he’d been as a young man, was unanimously elected president. (His beauty was marred only by his terrible teeth, which had rotted and been replaced by dentures made from ivory and from nine teeth pulled from the mouths of his slaves.)32 Deeply and nearly universally admired, Washington represented to many Americans all that was noblest in a republic. Nothing better testified to his civic virtue than his resignation of his command at the end of the war: instead of seizing power, he had given it away.33 His role as president of the constitutional convention was mostly ceremonial, but, as with so many ceremonial roles, it was an essential and even a stirring performance.
The deliberations began in earnest on May 29, when Edmund Randolph offered a polite expression of gratitude to the framers of the Articles of Confederation, who could hardly be faulted for that document’s deficiencies, given that they had “done all that patriots could do, in the then infancy of the science, of constitutions, & of confederacies.” Randolph was a formidable lawyer whose
Loyalist father had fled Virginia in 1775 and whose uncle Peyton’s slaves had joined Lord Dunmore’s regiment. He knew mayhem. He said he considered “the prospect of anarchy from the laxity of government everywhere,” and offered a series of resolutions about the means available to the convention for avoiding chaos.34
The immediate problem the delegates were charged with addressing—that chaos—was Congress’s debt, its lack of cash, and its inability to raise taxes or to suppress popular revolt or to resolve conflicts between the states. But, like many other delegates, Randolph believed that the work of the convention was to counter the tendencies of the state constitutions. “Our chief danger arises from the democratic parts of our constitutions,” he said. Massachusetts firebrand Elbridge Gerry agreed that the states suffered from an “excess of democracy.” Randolph believed that the point of the convention was “to provide a cure for the evils under which the United States labored; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for against this tendency of our Governments.”35