by Peter Irons
The men who gathered at the State House in 1787 were keenly aware of the failure of the Articles of Confederation, which had been ratified in 1781, to bind the thirteen states into a workable union. The “United States” of the Confederation were anything but united. The Articles did nothing more than establish “a firm league of friendship” among the states. But in the six years since they formed this league, the states had acted in decidedly unfriendly ways toward one another. They fought over trade and commerce, over recognition of their separate currencies, over boundaries between the states, over the creation of new states in the burgeoning western territories. In short, they acted more like quarreling European principalities than like “united states” with common purposes. The Confederation had been created in reaction to the arbitrary rule of a powerful government, but the men who drafted and ratified the Articles of Confederation erred in the opposite direction: the government they designed was weak, divided, and unable to resolve conflicts between warring interests and regions.
The flaws in the Articles were built into the governmental structure they created. Each state retained “its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The only powers that the drafters had delegated to the Confederation Congress were those to conduct foreign affairs, make treaties, and declare war. These were powers that no individual state could exercise by itself, although political leaders in each state continued to squabble over the ways in which Congress conducted the nation’s foreign affairs. Congress itself was an ineffective governing body. Members did not vote by themselves; each state had one vote, and nine of the thirteen states had to agree on each piece of legislation. The drafters of the Articles, determined to avoid lodging power in a single executive, created instead a president of Congress, who had no power to enforce the laws passed by its members. No state, in fact, was required to abide by the decisions of Congress; they were, in effect, merely advisory, and states often rejected that advice. The Articles also did not provide for a national judiciary; there was no body to adjudicate conflicts between states or citizens of different states. The drafters, in understandable reaction to the tyrannical rule against which they revolted, had replaced one of the strongest governments in the Western world with one of the weakest.
Well before the 1787 meeting in Philadelphia, leaders of the emerging “Federalist” bloc in politics began to criticize the ineffective Confederation and to call for revision of the Articles. Noah Webster, who had served in the revolutionary army and who was a lawyer as well as a lexicographer, wrote in 1785: “So long as any individual state has power to defeat the measures of the other twelve, our pretended union is but a name, and our confederation, a cobweb.” John Jay, who later served as the first Chief Justice of the United States, expressed his fears of disunion to George Washington: “Our affairs seem to lead to some crisis, some revolution—something I cannot see or conjecture. I am uneasy and apprehensive; moreso than during the war.” Whatever their concerns about the deficiencies of the Confederation, however, few men of stature wanted to scrap the Articles entirely; most agreed with Benjamin Franklin, widely admired for his wit and wisdom, that “we discover some errors in our general and particular constitutions; which it is no wonder they should have, the time in which they were formed being considered. But these we shall mend.”
Despite Franklin’s optimism, “mending” the Articles would not be an easy task. First, all thirteen states had to agree on any amendment of the Articles. The prospects for unanimous agreement on any proposal to expand the powers of Congress or to create executive or judicial branches of government were slim. Second, the interests of the separate states, divided by geography along northern and southern lines and by population into larger and smaller, had diverged so rapidly since the Articles were ratified that further division seemed more likely than unification. Few men, however, saw much harm in meeting to discuss possible revisions of the Articles; unanimity might be forged on proposals to “mend” those parts that most leaders thought amenable to minor revision. There were, to be sure, men in various states who desired a strong “federal” government, but they were by no means a majority in numbers or influence. Between 1785 and 1787, those who advocated a convention to revise the Articles of Confederation assured skeptics that they had no larger agenda than tinkering and talk.
As the weaknesses of the Articles became more evident, and as pressure built for a convention to revise them, one of the oldest laws of politics began to operate. Those who are most satisfied with the status quo, which in the Confederation era meant those who felt that the states should remain “sovereign” and only loosely federated, generally sit back and let the “hothcads” blow off steam. Conversely, those who desire rapid and radical change often conceal their designs behind clouds of soothing rhetoric, until they feel confident that they can control events. This law operated perfectly in 1787. James Madison, the scholarly young Virginian whose designs would powerfully shape both the new Constitution and the Bill of Rights that followed its ratification, shared his real views with his friend and fellow Virginian George Washington: “Temporizing applications will dishonor the Councils which propose them, and may foment the internal malignity of the disease. . . . Radical attempts, though unsuccessful, will at least justify the authors of them.” But Madison wrote in disarming words to Edmund Randolph, Virginia’s governor and an opponent of any major alteration of the Articles: “I think with you that it will be well to retain as much as possible of the old Confederation, though I doubt whether it may not be best to work the valuable articles into the new system, instead of engrafting the latter on the former.”
James Madison had begun hatching plans for a new constitution long before he arrived in Philadelphia in May 1787. Born in 1751, the eldest of ten children, Madison grew up on a Virginia plantation whose fields were plowed and planted by slaves. From early childhood, he buried himself in books and relished talk of philosophy and public affairs. Madison’s father sent him north for an education at the College of New Jersey, later known as Princeton. Here the young scholar came under the tutelage of John Witherspoon, a Presbyterian minister who drilled his students in the writings of David Hume, the Scottish philosopher who argued for the “utilitarian” principle of promoting “the greatest good for the greatest number.” Witherspoon also preached against slavery in passionate sermons; Madison later echoed his teacher in the Philadelphia convention when he denounced slavery as “the most oppressive dominion ever exercised by man over man.” He also told the delegates that he “thought it wrong to admit in the Constitution the idea that there could be property in men.” But the “utility” of the Constitution outweighed his personal moral views, and Madison signed a document that recognized slavery as a lawful institution.
The Philadelphia convention actually grew out of a meeting at George Washington’s estate at Mount Vernon in 1785. Disputes over fishing and navigation rights along the Potomac River, down to its outlet in Chesapeake Bay, had created tensions between all four states—Maryland, Virginia, Pennsylvania, and Delaware—bordering those waterways. The colonial grant to Lord Baltimore in 1632 had given Maryland all of the Potomac, up to the high-water point on Virginia’s side. The conflict over the “oyster war” dragged on for years, before and after the Revolution, and the Continental Congress did nothing to settle the dispute. Finally, representatives from all four states met at Mount Vernon, hoping that Washington could lend his name and prestige to a settlement. But the meeting did not succeed, and those who attended resolved to met with delegates from all the other states at Annapolis, Maryland, in September 1786. The Virginia legislature invited the other states to send delegates to “take into consideration the trade of the states” and to draft, if possible, a “uniform system in their commercial regulations.”
Not enough delegates showed up in Annapolis to make up a quorum, and nothing was done t
o end the “oyster war” along Chesapeake Bay. But the delegates who did attend passed a resolution, urged by James Madison and Alexander Hamilton, a wealthy lawyer and strong Federalist from New York, calling upon all state legislatures to send delegates to another meeting to consider “the situation of the United States” and 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.” The Annapolis delegates set the meeting time for the second Monday of May 1787 and the place in Philadelphia. Whether enough states would send delegates to yet another meeting was far from certain.
James Madison was the first delegate to arrive in Philadelphia for the meeting to “devise” alterations to the Articles of Confederation. During the preceding months, he had buried himself in books, reading widely in political philosophy and histories of republics and confederacies from ancient Greece to the current states of Europe, with special attention to the Swiss Confederation of independent cantons and the United Provinces of the Netherlands. Madison filled one notebook with his gleanings on the topic “Of Ancient and Modern Confederacies,” and another with a list of the “Vices of the Political System of the United States.” Not a single delegate arrived in Philadelphia after Madison who matched him in knowledge of the world’s governments and constitutions, or with equal determination to frame a new system that would forge the disunited states of America into a real federal union, one with powers “adequate to the exigencies of the Union.”
Madison not only had ideas about the new system he envisioned, but he had a plan. While delegates from other states were trickling into Philadelphia, Madison shared his plan with Washington, who arrived a few days later. Determined to create a strong national government, but also aware that the states would not willingly cede their cherished “sovereignty” over their own affairs, Madison wrote to Washington: “I have sought for some middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.” Both the sentence structure and choice of words left no doubt of Madison’s views on the primacy of federal power. He underscored this position in telling Washington that his plan would invest the federal government “with positive and complete authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports.” Madison then confided to Washington that his plan would place, “over and above this positive power, a negative in all cases whatsoever on the legislative acts of the states. . . . Without this defensive power, every positive power that can be given on paper will be evaded and defeated.” This was a radical—even revolutionary—proposal that would in effect reduce the “sovereign” states to a subordinate role in the new federal system.
The convention resolution of the Virginia legislature had set a quorum of seven states to begin deliberations. Eleven days passed between the opening session on May 14 and the first official session on May 25, when the quorum was finally met with twenty-nine delegates from seven states in attendance. During this time, Madison met almost daily with his fellow Virginians, whose seven members formed the largest delegation. He circulated among them copies of the fourteen points in his plan for a new government. His first, and most delicate, task was to convince Edmund Randolph, the powerful and persuasive Virginia governor, to set aside his objections to a new constitution. Madison won Randolph over with a brilliant strategem, allowing him to add to the “Virginia Plan” a fifteenth resolution, elevated to first place above Madison’s fourteen. Randolph proposed, and Madison accepted, a resolution that “the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, ̒common defense, security of liberty and general welfare.’ ” This was decidedly not what Madison had in mind, but he viewed Randolph’s resolution as harmless and his support of the other fourteen as essential.
With that strategic concession in hand, Madison prevailed on Randolph to introduce the Virginia Plan as soon as the convention elected officers and adopted rules. On May 25, the delegates unanimously elected George Washington as the presiding officer, and he took his seat in a high-backed mahogany chair behind a table covered in green baize. Washington assumed a tone of humility in telling the delegates that he “lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.”
Washington’s words were recorded by Madison, although the delegates had elected William Jackson of Pennsylvania as secretary. Madison had decided to keep his own account of the proceedings, later explaining that he was not “unaware of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world.” To record the debates, Madison wrote, “I chose a seat in front of the presiding member” and from “this favorable position for hearing all that passed, I noted in terms legible and in abbreviations and marks intelligible to myself what was read from the chair or spoken by the members.” Madison’s Notes of Debates in the Federal Convention of 1787, recorded in his spidery handwriting, covered more than six hundred printed pages when published in 1840, four years after his death at eighty-six, the last surviving delegate, who once wryly commented that “I may be thought to have outlived myself.” Madison had resisted every entreaty to publish his notes, feeling himself bound—until all had died—to protect his fellow delegates from attacks on what they may have said on one day and repented or regretted on another.
Madison also carried to his grave the rule adopted by the convention that “nothing spoken in the House be printed, or otherwise published or communicated without leave.” Only one delegate slipped from the secrecy rule, dropping a copy of convention proceedings on the floor outside the chamber. They were returned to Washington, who dramatically threw the document onto his table. “I know not whose paper it is, but there it is. Let him who owns it take it.” The miscreant did not come forward, but there were no further breaches of the secrecy rule. No delegate wished to risk the general’s wrath again.
The secrecy rule produced much discomfort among the delegates, as the State House windows were sealed during convention sessions to prevent eavesdropping and the Philadelphia summer of 1787 was sweltering. But the rule had the salutary effect—as Madison recognized in protecting his notes from publication—of allowing delegates to voice opinions, float proposals, and cast votes they would later alter or abandon. Edmund Randolph’s opening speech on the Virginia Plan, delivered with the gestures and flourishes of the practiced orator, set the standard for this changeable pattern. He first enumerated “the defects of the confederation” and of its Articles; he later played an active role in drafting what he described as a “fundamental constitution” to replace the Articles; and he finally refused to sign the document that emerged from the convention’s four months of deliberation.
The Viriginia Plan that Randolph presented to the convention drew upon Madison’s exhaustive study of other governments, and his conviction that a strong federal system required a dispersal of power among several branches, to avoid both the “monarchical” tendencies of unchecked executive power and the “instability” of governments based on legislative supremacy. Madison proposed, and Randolph presented, a system that included a “National Legislature” of two houses, one “elected by the people of the several states,” the other chosen by the elected members of the first house from “persons nominated by the individual legislatures” of each state. The Virginia Plan also called for a “National Executive” with “a general authority to execute the national laws,” and a “National Judiciary” to consist of “one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature” with a jurisdiction that included “piracies and felonies on the high seas, captures from an ene
my; cases in which foreigners or citizens of other states applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.” The Virginia Plan included many features of the Constitution that the delegates later adopted and the states ratified, including a two-house legislature, a “national executive,” and a federal judiciary The principle of “checks and balances” among the branches of the national government reflected Madison’s studies of the deficiencies of governments that lodged power in either legislative bodies or executive officers.
Throughout their four months of deliberation, with few exceptions, the delegates listened carefully and respectfully to one another and spoke in measured, thoughtful words. As in any other deliberative body, of course, there were those who spoke rarely or rashly. William Blount of North Carolina did not utter a recorded word until he announced on the final day his intention to sign the document he had taken no part in drafting. William Bassett of Delaware also remained silent during the convention, signing the Constitution without a word. Others ruffled feathers with endless, rambling speeches or thinly veiled attacks on the character or motives of fellow delegates. Luther Martin of Maryland spoke for two whole days on the evils of a strong national government in which small states would be overpowered by those of larger population and wealth. Even Madison, who rarely inserted critical remarks in his notes, recorded that Martin spoke “with much diffuseness and considerable vehemence.” Oliver Ellsworth of Connecticut, a firm nationalist who fumed during Martin’s discourse, later blasted him as “a specimen of eternal volubility.”