by Jill Lepore
Those delegates who opposed establishing a national government, and who thought they’d come to Philadelphia to revise the Articles of Confederation, could not appeal to the public, which might well have been severely alarmed by word of the goings-on in Independence Hall had they heard so much as a whisper. But the delegates had pledged to keep their deliberations secret—for a term of fifty years—a pledge that worked in favor of men like Madison. And, within the hall, it allowed for a full and frank airing of views.
The Constitution drafted in Philadelphia acted as a check on the Revolution, a halt to its radicalism; if the Revolution had tilted the balance between government and liberty toward liberty, the Constitution shifted it toward government. But in very many ways the Constitution also realized the promise of the Revolution, and particularly the promise of representation. In devising the new national government, the delegates adamantly rejected a proposal that the state legislators, rather than the people, elect members of Congress. “Under the existing Confederacy, Congress represent the States not the people of the States,” George Mason said, “their acts operate on the States not on the individuals. The case will be changed in the new plan of Government. The people will be represented; they ought therefore to choose the Representatives.”36
However much delegates at the convention might have railed at the excess of democracy in the state constitutions and regretted the lowering of property qualifications for voting in the states, they did not institute those requirements in the federal constitution. Franklin argued that, since poor men of no estate whatsoever had fought in the war, there could be no sound reason why they should not vote in the new government. “Who are to be the electors of the federal representatives?” Madison asked. “Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the People of the United States.” This was a matter as much of politics as of principle. Connecticut delegate Oliver Ellsworth put it plainly: “The people will not readily subscribe to the Natl. Constitution, if it should subject them to be disfranchised.” Voting requirements were left to the states.
Nor did the Constitution institute property requirements for running for federal office. “Who are to be the objects of popular choice?” Madison asked. “Every citizen whose merit may recommend him to the esteem and confidence of his country.” What could be more revolutionary than these words? “No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people,” Madison insisted.37
In this same revolutionary spirit, the Constitution required congressmen to be paid, so that the office would not be limited to wealthy men. It required only a short residency for immigrants before they, too, became eligible to run for office. Delegates who argued for greater restriction faced immigrants like Hamilton, born in the West Indies, and James Wilson, born in Scotland, who wondered at the prospect of “his being incapacitated from holding a place under the very Constitution which he had shared in the trust of making.”
But if these matters were resolved with relative ease, others proved far more difficult. The convention found itself facing a nearly unbreachable divide. How was fairly apportioned representation in Congress to be achieved in a national government composed of states of such different sizes? One proposal involved redrawing the map of the United States. “Lay the map of the confederation on the table,” a New Jersey delegate suggested, and redraw it so that “all the existing boundaries be erased, and that a new partition of the whole be made into 13 equal parts.”38 But, as Madison pointed out, the problem wasn’t only the size of the states. It was the nature of their population. “The States were divided into different interests not by their difference of size,” he explained, “. . . but principally from the effects of their having or not having slaves.”39
The problem of property in the form of people had become an even bigger problem than it had been before the Revolution. The years following the end of the war had witnessed the largest importation of African slaves to the Americas in history—a million people over a single decade. The slave population of the United States, 500,000 in 1776, had soared to 700,000 by 1787. After the Treaty of Paris, when Britain recognized the independence of the United States, it also regarded its former colonies as a foreign nation, which meant that American merchants were banned from British ports, including ports in the West Indies. As a result, a trade in slaves grew within the United States, as slave owners in the South sold their property to back country settlers in Kentucky, Louisiana, and Tennessee. Yet even as the number of slaves in the southern states was rising, it was falling in the North; by 1787, slavery had been effectively abolished in New England and much challenged in Pennsylvania and New York. Economically, it was significant in only five of the thirteen states, and in only two, South Carolina and Georgia, was it the crux of the economy.
At the convention, it proved impossible to set the matter of slavery aside, both because the question of representation turned on it and because any understanding of the nature of tyranny rested on it. When Madison argued about the inevitability of a majority oppressing a minority, he cited ancient history, and told of how the rich oppressed the poor in Greece and Rome. But he cited, too, modern American history. “We have seen the mere distinction of color made in the most enlightened period of time, the ground of the most oppressive dominion ever exercised by man over man.”40 In offering this illustration of oppression, Madison hadn’t intended to make a point about slavery (although he did, inadvertently, make such a point, since what he said that day revealed that he thought “the mere distinction of color” was no basis for bondage); he was trying to convince his fellow delegates that a republic needed to be large, and with an abundance of factions, so that a majority could not oppress a minority. But slavery was how he understood oppression.
Slavery became the crucial divide in Philadelphia because slaves factored in two calculations: in the wealth they represented as property and in the population they represented as people. The two could not be separated.
The most difficult question at the convention concerned representation. States with large populations of course wanted representation in the federal legislature to be proportionate to population. States with small populations wanted equal representation for each state. States with large numbers of slaves wanted slaves to count as people for purposes of representation but not for purposes of taxation; states without slaves wanted the opposite. “If . . . we depart from the principle of representation in proportion to numbers, we will lose the object of our meeting,” Pennsylvania’s James Wilson warned on June 9.41 That same day, or probably later that evening, Benjamin Franklin, catching up on his correspondence, distributed to notable antislavery leaders around the world copies of the new constitution of the Pennsylvania Society for Promoting the Abolition of Slavery, “for in this business the friends of humanity in every Country are of one Nation and Religion.”42 Franklin spoke at the convention on the question of representation, but it was Wilson, his fellow Pennsylvanian, who treated the matter squarely. Better than any other delegate, Wilson understood the nature of the political divide—a divide that would, in a matter of decades, sunder the Union.
On July 11, Wilson asked why, if slaves were admitted as people, they weren’t “admitted as Citizens.” And “then why are they not admitted on an equality with White Citizens?” And, if they weren’t admitted as people, “Are they admitted as property? Then why is not other property admitted into the computation?”
The convention was very nearly at an impasse, broken only by a deal involving the Northwest Territory—a Northwest Ordinance decreeing that any new states entering the Union formed north of the Ohio River would be without slavery, while those south of the Ohio would continue slavery. This measure passed on July 13. Four days later, the convention adopted what’s known as the
Connecticut compromise, establishing equal representation in the Senate, with two senators for each state, and proportionate representation in the House of Representatives, with one representative for every 40,000 people (at the very last minute this number was changed to 30,000). And, for purposes of representation, each slave would count as three-fifths of a person—the ratio that Madison had devised in 1783. A federal census, conducted every ten years, was instituted to make the count.43
The most remarkable consequence of this remarkable arrangement was to grant slave states far greater representation in Congress than free states. In 1790, the first Census of the United States counted 140,000 free citizens in New Hampshire, which meant that the Granite State got four seats in the House of Representatives. But South Carolina, with 140,000 free citizens and 100,000 slaves, got six seats. The population of Massachusetts was greater than the population of Virginia, but Virginia had 300,000 slaves and so got five more seats. If not for the three-fifths rule, the representatives of free states would have outnumbered representatives of slave states by 57 to 33.44
During a break in the proceedings in August, Madison attended to his own affairs. A slave named Anthony, seventeen, had run away from Montpelier; Madison asked his erstwhile human property, Billey, now William Gardener, if he knew where Anthony might have gone.45 Anthony had gone looking to be five-fifths of a person.
Franklin spent the break resting, and pondering the problem of slavery. He’d planned to introduce a proposal calling for a statement of principle condemning both the trade and slavery itself, but northern delegates had convinced him to withdraw it because the compromise was so fragile. Massachusetts delegate Rufus King spent the adjournment rethinking his concession to the three-fifths clause. And when deliberations resumed, King proposed that Congress at least be granted the authority to abolish the slave trade, whereupon the South Carolina delegation made clear that any attempt to restrict the trade would force them to leave the convention.
This Luther Martin could not abide. Martin, the son of New Jersey farmers, had been a schoolmaster before he became a lawyer; in 1778, he’d been appointed Maryland’s attorney general. Martin declared that the trade in slaves “was inconsistent with the principles of the Revolution and dishonorable to the American character.” He was short and red-faced, as slovenly as he was brilliant. “His genius and vices were equally remarkable,” it was said.46 But he proved a man of principle. He withdrew from the convention, refused to sign the Constitution, and opposed its ratification, warning that “national crimes can only be, and frequently are, punished in this world by national punishments.”47 John Rutledge dismissed Martin’s argument. Rutledge, forty-eight, had served in the South Carolina assembly, the Stamp Act Congress, and the Continental Congress, and as governor of his state; he proved to be the South’s most determined defender. “The true question at present,” he insisted, “is whether the Southern states shall or shall not be parties to the Union.”
New Englanders ceded the point. “Let every state import what it pleases,” said Connecticut’s Oliver Ellsworth. Ellsworth, a devout Christian, had prepared for a career in the ministry before becoming a lawyer. “The morality or wisdom of slavery are considerations belonging to the states themselves,” he said. He also believed that the institution was on the wane: “Slavery, in time, will not be a speck in our country.”
A compromise between those opposed to the slave trade and those in favor of it was reached with a motion that Congress should be prohibited from interfering with the slave trade for a period of twenty years. Madison was aggrieved. He’d have preferred no mention of slavery in the Constitution at all. “So long a term will be more dishonorable to the national character than to say nothing about it in the Constitution,” he warned. Gouverneur Morris, who’d lost a leg to a carriage wheel and the use of an arm to a boiling pot of water, was appalled at the entire bargain, and decided to deliver a lecture. “The inhabitant of Georgia and S.C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.” He said he “would sooner submit to a tax for paying for all the Negroes in the United States than saddle posterity with such a Constitution.” As Morris pointed out, the delegates were there to build a republic, but there was nothing more aristocratic than slavery. He called it “the curse of heaven.”48
The Constitution would not lift that curse. Instead, it tried to hide it. Nowhere do the words “slave” or “slavery” appear in the final document. “What will be said of this new principle of founding a right to govern Freemen on a power derived from slaves,” Pennsylvania’s John Dickinson wondered—correctly, as it would turn out. He predicted: “The omitting the Word will be regarded as an Endeavour to conceal a principle of which we are ashamed.”49
Five days before the close of the convention, George Mason proposed adding a bill of rights. “A bill might be prepared in a few hours,” he urged. But Mason’s proposal was struck down; not a single state voted in favor of it, mainly because most states already had a bill of rights, but also because the delegates were exhausted and eager to go home.
By Monday, September 17, 1787, after four months of arduous debate, a polished draft was at last ready for signatures. After the document was read out loud for the very first time, Franklin, crippled by gout, struggled to rise from his chair but, as had happened many times during the convention, he found he was too weary to make a speech. Wilson, half Franklin’s age, read his remarks instead.
“Mr. President,” he began, addressing Washington, “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them.” He suggested that he might, one day, change his mind. “For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.” Hoping to pry open the minds of delegates who were closed to the compromise before them, he reminded them of the cost of zealotry. “Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error.” But wasn’t humility the best course, in such circumstances? “Thus I consent, Sir, to this Constitution,” he closed, “because I expect no better, and because I am not sure, that it is not the best.”50
It was four o’clock in the afternoon when the delegates began signing the bottom of the last of the document’s four sheets of parchment. Mason was among the delegates who refused to sign. Washington sat in a chair in front of a window. Franklin understood the importance of political theater. He ventured that he had often wondered, during the many long days at the convention when he’d lost track of the time, whether the sun he could see outside the window, like the sun carved on the back of Washington’s chair, was rising or setting. “But now at length,” he said, “I have the happiness to know that it is a rising and not a setting sun.”51
The day after the convention adjourned, what had been kept for so long strictly secret and had only so lately been written on parchment was copied and made public, printed in newspapers and on broadsheets, often with “We the People” set off in extra-large type. Washington sent a copy to Lafayette in Paris: “It is now a Child of fortune.” As Madison explained, the Constitution is “of no more consequence than the paper on which it is written—a blank page—unless it be stamped with the approbation of those to whom it is addressed. . . . THE PEOPLE THEMSELVES.”52
THE DECLARATION OF INDEPENDENCE had been signed by members of the Continental Congress; it had never been put to a popular vote. The Articles of Con
federation had been ratified in the states, not by the people, but by the state legislatures. Except for the Massachusetts Constitution, in 1780, and the second New Hampshire Constitution, in 1784, no constitution, no written system of government, had ever before been submitted to the people for their approval. “This is a new event in the history of mankind,” said the governor of Connecticut at his state’s ratification convention.53
The debate over ratifying the Constitution produced some of the most heated political writing in American history, not only in American newspapers but in hundreds of broadsides and pamphlets. The argument in favor of ratification was made, eloquently and persuasively, in eighty-five essays, known as The Federalist Papers, published between October 1787 and May 1788 under the pen name Publius. Ambitious, young, red-haired Alexander Hamilton, who hadn’t played much of a role at the constitutional convention, and who thought the Constitution created a government too democratic, wrote fifty-one of the essays. Madison wrote another twenty or so, and John Jay wrote the rest.
A 1787 engraving pictures Federalists and Anti-Federalists pulling in two different directions a wagon labeled “Connecticut,” stuck in a ditch and loaded with debts and (worthless) paper money. The debate, waged in ratifying conventions but, even more thrillingly, in the nation’s weekly newspapers, established the structure of the new nation’s two-party system. Against the Federalists stood the unfortunately named Anti-Federalists, who opposed ratification. If it hadn’t been for the all-or-nothing dualism of this choice, and a partisan press, the United States might well have a multiparty political culture.
The Anti-Federalists generally charged that the Constitution amounted to a conspiracy against their liberties, not least because it lacked a bill of rights. Jefferson, from Paris, made this complaint: “A bill of rights is what the people are entitled to against every government on earth.”54 Anti-Federalists also argued that Congress was too small; here they cited John Adams, who’d written that a legislature “should be in miniature, an exact portrait of the people at large.” Influenced by Montesquieu’s The Spirit of the Laws (1748), Anti-Federalists believed that a republic had to be small and homogeneous; the United States was too big for this form of government. They also charged that the Constitution was difficult to read, and that its difficulty was further evidence that it was part of a conspiracy against the understanding of a plain man, as if it were willfully incomprehensible. “The constitution of a wise and free people,” Anti-Federalists insisted, “ought to be as evident to simple reason, as the letters of our alphabet,” as easy to read as Common Sense. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry declared.”55