On the face of it, the cardinal question facing the convention seemed simple: how much power to yield to the new federal government at the expense of the states? This “division of powers” was closely related, however, to “separation of powers.” How should power be divided up among the legislative, executive, and judicial branches of the new federal government? And these two questions were related in turn to extraordinarily complex issues of representation: by what persons should members of the two houses of Congress, the executive, and the judiciary be appointed or elected, for terms of what length, and with what checks or vetoes upon one another? And attitudes toward all these questions were closely affected by delegates’ calculations of local and regional advantage; by personal experience, interest, and ideology; by concern for the likely impact of the new constitution on issues such as slavery, western expansion, foreign relations, economic policy; by faith—or lack of it—in the people’s intelligence and in majority rule. The delegates had to think in terms of literally hundreds of possible permutations and combinations, with every new decision possibly upsetting positions previously arrived at.
The Virginia Plan provided a focus that helped avert parliamentary anarchy. Day after day Madison and his allies mustered the votes to put through major parts of their program, at least provisionally. By the second week of June, however, the opponents of the Virginia Plan were organizing a counterattack. The immediate issue was the most divisive that faced the convention: how the small states and the big states would be represented in Congress. And this issue was inseparable from the question of how much power Congress would wield.
On June 15 William Paterson of New Jersey rose to join battle—a gentleman of “about 34 ys. of age, of a very low stature,” Pierce noted, and of rather modest appearance and presence, but “one of those kind of Men whose powers break in upon you, and create wonder and astonishment.” He offered a counterplan to the Virginians’, supported by men who were less famous throughout America than delegates like Madison and Hamilton, but well known and highly regarded in their states, nonetheless: men like Roger Sherman, a Connecticut politician, self-taught lawyer, Yale treasurer; Luther Martin, Princeton graduate, a lawyer, a patriot, but tending toward both the bottle and the battological; John Lansing of Albany, owner of a vast tract of land in upstate New York, a friendly, good-looking man who generally took the anti-nationalist line. Paterson and his colleagues seemed to challenge the Virginia Plan on almost every point, especially in their plea for a new national Congress of one chamber that would represent the large and the small states equally.
With the issue of confrontation clear, the convention moved on to new heights of oratory and argumentation. Emotions rose to such a pitch that there were veiled warnings of walkouts, and indeed of a separation of states and disintegration of the Union. But the convention was never in serious danger. The New Jersey Plan had accepted the major premises of the Virginia Plan: expanded power for the national government; the authority of that government to act directly on individuals and not merely on states; the national executive to have coercive authority over the states if necessary to enforce the law. Committees of compromising politicians were set up and the rival plans were adjusted to each other. Historians have generally written that the “Connecticut compromise” came to the rescue of the beleaguered convention, but in fact the main feature of the compromise—election of an upper chamber on the basis of equality between large and small states, and election of a lower chamber through popular representation—had been foreshadowed in the convention deliberations almost from the start. It was a natural compromise, granting both the Virginians and the New Jerseyites the kind of representation they wanted.
Because the vast majority of the delegates were so agreed on one fundamental concept, further agreements were reached during the remaining weeks of the convention. That concept was checks and balances. One might have expected the proponents of both plans to be disgruntled by the final compromise, because each chamber of Congress was given an absolute veto over the other, which meant that a “small state” Senate might block a “large state” House of Representatives, or vice versa. But neither side seemed to have this fear, mainly because all they wanted for their small states or large states was a “negative veto” to protect their existing liberties, not a positive power to join with other branches to use government in attempts to expand people’s liberties. This attitude and this decision would come back to haunt the future conduct of American public affairs.
It was also because of this fundamental agreement between large- and small-staters that the convention was able to resolve, for the time being at least, some of the other knotty problems before it. One of these was the national executive. The issue arose early in the convention, and it soon became clear that the delegates had highly mixed feelings about the mechanics of the executive. After Charles Pinckney called for a “vigorous executive” but feared that it might exercise powers over “peace and war” more appropriate to a monarchy, and after Wilson moved that the executive consist of a single person, a considerable pause ensued, and Rutledge remarked on the “shyness of gentlemen” on this subject. They were less shy than uncertain. Sherman considered the “Executive magistracy” to be nothing more than an agency for carrying out the will of the new Congress. Gerry wanted a council annexed to the executive, “in order to give weight and inspire confidence.” Randolph condemned “a unity in the Executive” as the “foetus of monarchy.” Wilson replied: No, it would be the best safeguard against tyranny. Madison suggested mildly that before choosing between a unity and a plurality in the executive, they might fix the extent of executive authority.
On this matter too, the delegates’ differences were largely on points of detail. Certainly the executive should have some kind of veto over the legislative; should exercise initiative and assume responsibility in the making of foreign policy; should possess considerable control over his own executive branch, through the appointive power and the like. The President would be given authority to conduct war as Commander in Chief, but not the unilateral power to declare or make war; he would have no general prerogative to exercise emergency powers, although it was assumed he would act for the national self-defense. The Framers argued at length over some of these questions but did not sharply disagree, because they all wanted to grant the President a balanced and limited set of powers within the overall framework of the strategy of checks and balances.
The men of Philadelphia showed a far less firm grasp on the question of how to elect the executive. Knowing today the crucial differences between the parliamentary and presidential forms of government, we read the convention debates almost suspensefully as the delegates teeter back and forth between selection of the President by Congress and election by the state legislatures or by the voters. The delegates were more impressed by the dilemma than by the drama. Gerry opposed legislative selection of the President on the ground that Congress and the presidential candidates would constantly “intrigue” and “bargain and play into one another’s hands.”
In the end, the Framers decided on a jerry-built institution called the electoral college, designed to create a bulwark between the aroused passions of the people and the office of the chief executive and, in the spirit of the checks and balances, to make the executive and legislative branches responsible to different constituencies. The common assumption that George Washington would be the first President nourished agreement on the presidential election process.
On the national judiciary, most of the delegates were agreed as to its general shape and role but divided over mechanics. The judicial power would be vested in one supreme tribunal, and Congress would have authority to establish inferior federal courts. The question of the reach of the judiciary was left obscure; most delegates assumed, however, that the Supreme Court would at least be able to invalidate acts of the states and probably also acts of Congress. Both powers would fit neatly into the checks and balances strategy. So should the manner of choosing the judges, tho
ugh here the delegates disagreed. In one early session, James Wilson opposed congressional selection on the grounds that “Experience shewed the impropriety of such appointmts. by numerous bodies,” according to Madison’s notes. “Intrigue, partiality, and concealment were the necessary consequences.” But “Mr. Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy.” Madison was inclined to give the power to the Senate. Franklin “in a brief and entertaining manner” reminded the delegates of the “Scotch mode”—lawyers were given the power to nominate, and they always selected the ablest “in order to get rid of him, and share his practice [among themselves].” Eventually the delegates took advantage of the planned separate entities of the President and the Senate, the first of whom would propose, and the second confirm, appointments to the Supreme Court for life.
On the festering and rankling issue of slavery the delegates compromised from start to finish. Indeed, the delegates were already compromised before the start of the convention, for the “federal ratio” of three-fifths “representation” for slaves had been established under the Confederation and still reflected a crude balance of sections, ideology, and interests. Facing the delegates was not merely the stark issue of slavery itself; intertwined with it was the question of whether representation should be based on persons alone or also on property. Not only Southerners but Northerners like Rufus King and Gouverneur Morris believed in extra representation for property, and in the eyes of the law slaves were property, not persons.
For these white men the black man was always a brooding and unsettling presence (the black woman, even more than the white woman, was beyond the pale, beyond calculation). For the black man, the white man deciding on slave representation could be a cause only of sardonic reflection. For the issue never was slave representation, slave votes, slave power; it was whether slaves would not count in the representation of the South at all, or whether a slave owner would enjoy a three-fifths increment of representation for every slave he owned. On this latter choice the slave could reflect that he had been granted three-fifths symbolic manhood. William Paterson told the delegates bluntly that slaves were “no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary, are themselves property” and hence like other property “entirely at the will of the master.”
For the black man, exclusion from the reach of liberty and equality, even on solemn occasions glorifying liberty and equality for “all men,” was already an old story. In his first draft of the Declaration of Independence, Thomas Jefferson had indicted King George for the horrors of the slave trade, only to have this clause struck out from the final draft on the insistence of South Carolinians and other seacoast Southerners. And even in Massachusetts, where slaves had been “freed,” emancipation was accomplished by judicial decree rather than legislative action. What white workers really wanted, in Donald Robinson’s words, “was not the emancipation of the slaves, but their removal from the state.”
Throughout the heated debates that followed, the three-fifths formula stuck. Another seeming compromise was reached on the issue of the slave trade: abolition not before 1808, with a powerful extradition clause written into the Constitution. What the delegates did not do was more important than what they did: “they did not themselves outlaw slavery,” Rossiter noted, “nor in any way seek to mitigate its effects; they did not give Congress the power to outlaw slavery in the states; they made provision neither to help nor hinder free Negroes in the attempt to win the status and rights of citizenship.” The reason was obvious to all: a stronger stand on slavery would probably have led to rejection of the Constitution in the South, and eventually to disunion.
Union and order and national strength were far more important to most of the Framers than were the rights or liberties of black men and women. For only in union and order, most of them believed, could their own liberties be protected.
And so the men of Philadelphia persevered through the hot July and August days, filling out the details now that the grand design had been set in the Connecticut compromise, sawing boards to make them fit, as Benjamin Franklin said. Some of the boards required much sanding and smoothing, as the delegates thrashed out irksome but vital aspects of the relations between the national and state governments, the enumerated powers of Congress, the jurisdiction of the courts, the reach of impeachment, the amending clause, and procedures for ratifying the Constitution itself. They endured hundreds of roll-call votes as they polished clause after clause of the new charter. They debated the “details” of the Constitution as if they foresaw that someday vital outcomes would turn on such matters as the availability of impeachment or the scope of judicial review. They deliberated as if the eyes of the world were on them. “With Grave Anxiety, my dear friend, I wail for the Result of the Convention,” Lafayette had written John Jay, who was keeping in touch with delegates from his post in New York. Hour after hour the delegates toiled, six days a week, with hardly a break, except for a ten-day recess during which a committee on detail consolidated the work of the convention, while the rest of the delegates dined out, tackled their correspondence, took excursions into the countryside, and went fishing. Philadelphia offered few temptations; nights were given over to further talk in taverns and in the delegates’ hot and crowded quarters.
There were diversions. One was the spectacle of Alexander Hamilton taking the floor for six hours one day to orate brilliantly on the need for a powerful national government and a President of almost monarchical cast. The delegates listened avidly, then returned to their mundane carpentry. Another was John Fitch’s steamboat, which the inventor demonstrated down at the river. Watching the ungainly, heaving, panting contraption, the delegates could hardly have dreamed that steam would transform the very society and economy they were seeking to tame.
CHAPTER 2
The Third Cadre
T HE STORY HAS OFTEN been told of the final conciliatory moment of the convention, on September 17—of Benjamin Franklin’s remark, as the last members were signing, that during the vicissitudes of the proceedings he had often looked at the president’s chair, on which a sun happened to be painted, and wondered whether it was a rising or a setting sun; but now, he said, he knew that it was rising. The delegates later repaired to the City Tavern on Second Street near Walnut, where they “dined together,” Washington reported, “and took a cordial leave of each other.”
Nevertheless, the convention adjourned amid extensive disagreements and misgivings. Three delegates—Randolph, Mason, and Gerry—refused to put their names on the document. Others signed mainly to present a show of unity. A number of delegates lamented especially the absence of a bill of rights. When Charles Pinckney and Elbridge Gerry had proposed in convention that the “liberty of the Press should inviolably be observed,” Sherman had replied, “It is unnecessary—the power of Congress does not extend to the Press,” and the proposal was voted down. Sherman’s argument had sat badly; how could a constitution fashioned to protect liberty omit a guarantee of liberty? Still, delegates felt that this omission and other failures in the charter could be remedied through extensive use of the amendment process that they had fashioned so carefully. Some calculated that adding a bill of rights could be made the price of accepting the new charter.
Still, the delegates had passed a hard test of leadership in Philadelphia. The question in the fall of 1787 was whether these leaders could pass the far harsher test of winning support for the new charter in the ratifying conventions to be held in the states. At the start, prospects looked good for the “friends of the Constitution.” They were led by Madison, Hamilton, Wilson, and others who had demonstrated their political skills year after year, in struggle after struggle. They had both an evocative symbol and a stalwart leader in George Washington. They had access to clergymen, editors, state officials. They could boast of a reserve team of leaders who had not attended the convention but who matched the Federalists
at Philadelphia in their political experience and acumen—men like John Adams of Boston and London, Thomas Jefferson of Charlottesville and Paris, John Jay of New York, John Marshall and Edmund Pendleton of Virginia, Dr. Benjamin Rush of Pennsylvania, Edward Rutledge and Henry Laurens of South Carolina.
The Federalist plan was to push quickly through Congress, in which they were well represented, a resolution transmitting the draft Constitution on to the states with a recommendation in favor of ratification. But the national legislature, still cautious to the point of inertia, would not commit itself; and the Federalists had to be satisfied with a resolution that the document “be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof.” Richard Henry Lee of Virginia complained to his fellow anti-Federalist George Mason that the Federalists had made much of the Congress unanimously transmitting the Constitution to the states, “hoping to have it mistaken for an unanimous approbation of the thing…[but] no approbation was given.” The Federalist tacticians also saw to it that the legislatures had to call conventions in their states, and that the Constitution would go into effect—for the ratifying states—after endorsement by conventions in any nine of the thirteen states. The new order would not wait for unanimity.
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