A People's History of the Supreme Court

by Peter Irons

  Sensing the dangerous appeal of Paterson’s words, Madison felt compelled to respond on the spot. His purpose—keeping the large and small states together in the Congress—was clear, but his words were devious. Madison first “reminded Mr. Paterson that his doctrine of representation which was in its principle the genuine one, must forever silence the pretensions of the small states to an equality of votes with the larger ones.” He turned Paterson’s democratic pretensions against him. The states should vote in Congress “in the same proportion in which their citizens would do, if the people of all the states were collectively met.” But principle gave way to practicality as Madison “suggested as a proper ground of compromise, that in the first branch the states should be represented according to their number of free inhabitants; and in the second, which had for one of its primary objects the guardianship of property, according to the whole number, including slaves.”

  This first effort at compromise did not succeed, for Madison had misjudged the determination of Paterson and his allies in the small northern states to prevent the southern states—with equally small white populations—from outvoting them in Congress. Following Madison’s speech, the delegates voted to refer the question of representation to a committee on which each state had a member. This group, called the Committee of Eleven, replaced the Committee of Five, which the delegates had earlier set up to propose a representation plan. The numbers game on this question illustrated the intransigence on both sides: no committee—however small or large—could fashion a compromise that would satisfy a majority of the state delegations. When the Committee of Eleven reported back on July 10, the delegates spent most of the day haggling over whether New Hampshire should have two or three representatives in the House.

  After this contentious session, Hugh Williamson of South Carolina—who had spoken very little on any issue—presented his own compromise, offering a choice between those who wanted to count all inhabitants in apportioning House seats and those who wanted to count only whites. Williamson was a man of moderation, drawn to compromise rather than confrontation. He moved that “a census shall be taken of the free white inhabitants and three fifths of those of other descriptions” and that “representation be regulated accordingly.”

  Williamson’s proposal had the advantage of seeming a reasonable position between two extremes. Pierce Butler and Charles Cotesworth Pinckney of South Carolina, adamant defenders of slavery, promptly “insisted that blacks be included in the rule of representation, equally with the whites,” and moved to strike the words “three fifths” from Williamson’s motion. Butler argued that “the labor of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts” and that “an equal representation ought to be allowed for them in a government which was instituted principally for the protection of property, and was itself to be supported by property.” But only two other states voted with the South Carolinians on this motion.

  On the other side, those who argued against proposals to count slaves did so not on moral grounds but simply from expedience. Roger Sherman of Connecticut “thought the number of people alone the best rule” for representation, but he opened the door for compromise by endorsing Edmund Randolph’s proposal that some ratio between all or none “ought to be fixed by the Constitution.” Rufus King of Massachusetts voiced the sentiments of many delegates who simply wanted to settle the issue and move on to other questions. He found “great force” in the objections of Gouverneur Morris of Pennsylvania, the most insistent opponent of compromise on slavery, but he would vote for Williamson’s motion “for the sake of doing Something.” The debate on representation became complicated by disputes over the number of years between each census; Madison’s motion to add the words “at least” after “15 years” was defeated on a tie vote. By the day’s end the delegates were so testy that Williamson’s “three fifths” motion, weighted down with amendments, was rejected by every state.

  What seemed to many weary delegates as the death knell for compromise spurred others to redouble their efforts. After a weekend of private meetings and caucuses, the delegates returned to the State House on Monday, July 16, ready to vote on what soon came to be called the Great Compromise. Over the previous week, debate on the representation issue made clear that the small states would rather bolt from the convention than agree to proportional representation in the Senate. The southern states were also adamant that slaves be counted, either equally with whites or in some substantial ratio, in apportioning House seats. Pierce Butler of South Carolina told the convention that “the security the southern states want is that their Negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do.” He was answered by James Wilson of Pennsylvania, who proclaimed that “all men wherever placed have equal rights” and that “he could not agree that property was the sole or the primary object of government and society.”

  James Madison made one last appeal for his principle of population as the basis of representation in the session on Saturday, July 14. He “expressed his apprehensions that if the proper foundation of government was destroyed, by substituting an equality in place of a proportional representation, no proper superstructure would be raised.” His last-ditch effort at a compromise that would satisfy him was the proposition that “In all cases where the general government is to act on the people, let the people be represented and the votes be proportional. In all cases where the government is to act on the states as such, in like manner as Congress now act on them, let the states be represented and the votes be equal. This was the true ground of compromise if there was any ground at all.” But Madison then retreated to his principle and “denied that there was any ground” for compromise.

  Madison’s words became increasingly sharp and bitter. He challenged his opponents to show “a single instance in which the general government was not to operate on the people individually” He leveled a veiled insult at Delaware, whose five delegates outnumbered both Massachusetts and New York. “No one would say that either in Congress or out of Congress Delaware had equal weight with Pennsylvania,” Madison said. He repeated his earlier disquisition on the Dutch confederacy, and then outlined five objections to equality of states in the Senate, arguing that small states “could extort measure” from the larger states and frustrate “the will of the majority of the people.” He finally lashed out at the southern states as the fomenters of discord and division. “It seemed now to be pretty well understood,” Madison said, “that the real difference of interest lay, not between the large and small but between the northern and southern states. The institution of slavery and its consequences formed the line of discrimination.” Giving the slave states extra weight in Congress by counting, even at three fifths, persons who were barred from voting struck Madison as unjust, on both moral and practical grounds.

  Madison used strong words in the Saturday session. By Monday morning, the battle was over. The Great Compromise, allowing the southern states to count slaves as three fifths of a person for House seats and providing for equal votes for each state in the Senate, was adopted without further debate. Four of the small states—Connecticut, New Jersey, Delaware, and Maryland—found an ally in North Carolina, a large state in population but also a slave state. These five states outvoted Pennsylvania, Virginia, South Carolina, and Georgia. Four of the thirteen states in the Confederation were divided or did not vote. The four delegates from Massachusetts were split, two on each side; Rhode Island did not send delegates to Philadelphia; and New York and New Hampshire each lacked a quorum. Based on the white population, states with less than one third of the total population prevailed over those with two thirds. The outcome was hardly a ringing endorsement of democracy; in fact, it represented a victory for slavery, aristocracy, and elitism. But the rules of the convention had been followed, and five was a larger number than four.

  Edmund Randolph was the first to speak after this momentous decision. He voiced the
concerns of those from the larger states who felt the closeness of the vote robbed the convention of legitimacy “The vote of this morning had embarrassed the business extremely,” he began. Randolph then spoke of the Constitution the delegates had assembled in Philadelphia to draft. “It will probably be in vain to come to any final decision with a bare majority on either side.” He proposed that the convention adjourn, “that the large states might consider the steps proper to be taken in the present solemn crisis of the business, and that the small states might also deliberate on the means of conciliation.”

  William Paterson of New Jersey, who had opposed counting slaves in any representation plan but whose delegation had voted for the Great Compromise, took Randolph’s remarks a step further. He thought “it was high time for the convention to adjourn, that the rule of secrecy ought to be rescinded, and that our constituents should be consulted.” Paterson challenged Randolph to move for adjournment “sine die”—that is, without specifying a day to reconvene—which would have ended the convention for good. Randolph replied that he had not proposed an indefinite adjournment, and “was sorry that his meaning had been so readily and strangely misinterpreted.” John Rutledge of South Carolina did not wish to “abandon everything to hazard” and wanted to proceed. He was adamant on this issue. “The little states were fixed,” he said. “All that the large states then had to do, was to decide whether they would yield or not.”

  And yield they did. The delegates voted to adjourn until the next day. That morning, before the convention resumed, Madison attended a meeting of delegates from several states—large and small—to discuss the seeming impasse. “The time was wasted in vague conversation,” he noted, “without any specific proposition or agreement.” Some delegates from large states held firm against the Great Compromise, but others “seemed inclined to yield to the smaller states” and move on. When the delegates met on July 17 in the State House, the battle was over. Counting slaves as “three fifths” of a person for House seats and providing equal votes for each state in the Senate were now parts of the Constitution.

  Flushed with victory, the slave states pressed for even greater protection of their “property” in fellow humans. Before the convention ended, they succeeded in securing two additional provisions. Pierce Butler and Charles Cotesworth Pinckney of South Carolina moved on August 28 “to require fugitive slaves and servants to be delivered up like criminals.” Roger Sherman of Connecticut objected that he “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.” The South Carolinians withdrew their motion, and came back the next day with a longer, more detailed motion providing than–even in free states–fugitive slaves “shall be delivered up to the person justly claiming their service or labor.” The delegates agreed to this provision by voice vote, with no recorded debate. The final version in the Constitution, polished by the Committee on Style, differed only slightly in wording and was adopted once more without debate.

  The third provision about slavery did provoke debate, much of it heated. Luther Martin of Maryland, himself the owner of “domestic” slaves as household help, moved on August 21 that Congress be allowed to prohibit the further importation of slaves. He argued that slavery “weakened one part of the Union which the other parts were bound to protect: the privilege of importing them was therefore unreasonable.” He also objected that slavery “was inconsistent with the principles of the Revolution and dishonorable to the American character to have such a feature in the Constitution.” John Rutledge of South Carolina immediately responded for the slave states. “Religion and humanity had nothing to do with this question,” he said dismissively. “Interest alone is the governing principle with nations.” He felt that “If the northern states consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers.” Rutledge issued an implied threat, reminding Martin that the convention had not yet adopted a Constitution and that the “true question” was whether the slave states “shall or shall not be parties to the Union.”

  The debate over slavery consumed most of the next day. Roger Sherman of Connecticut “disapproved of the slave trade” but found it “expedient to have as few objections as possible” to the Constitution. He proposed allowing the southern states to continue importing slaves and “urged on the convention the necessity of dispatching its business.” Sherman wanted to move on to such pressing issues as the number of days each house of Congress could adjourn without consent from the other. George Mason, the Virginia radical, jumped to his feet and answered Sherman with indignation. Despite being a slave owner himself, he denounced the “infernal traffic” in slaves and rebuked those northern states that allowed a “lust of gain” from commerce to cloud their moral vision. Mason added that “the judgement of heaven” fell on countries that allowed the “nefarious traffic” in slaves. “As nations cannot be rewarded or punished in the next world they must be in this,” he continued. “By an inevitable chain of causes and effects providence punishes national sins, by national calamities.” Mason spoke like an Old Testatment prophet, but his fellow delegates did not “incline their ear” to his words, as Jeremiah had lamented of those who ignored his prophecy that “the land will become a ruin” if they did not repent “the evil of their ways.”

  Oliver Ellsworth of Connecticut was deaf to moral appeals. “Let us not intermeddle,” he replied to Mason, and “be unjust” toward the states whose commerce depended on slavery. Delegates from the slave states warned those who would prohibit further importation that intransigence on this question would imperil the Constitution. “If the convention thinks,” said John Rutledge, that the slave states “will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those states will never be such fools as to give up so important an interest.”

  Despite the southern threats, enough delegates voiced support for allowing Congress to ban the slave trade that both sides agreed with the proposal of Gouverneur Morris of Pennsylvania that the issue be sent to a committee that “may form a bargain among the northern and southern states.” The committee returned on August 24 with a bargain in hand: Congress would be allowed to prohibit the importation of slaves, but could not exercise this power before 1800, thirteen years later. When the delegates reached this provision the next day, Charles Cotesworth Pinckney of South Carolina moved to extend the time to 1808. James Madison was the only voice in opposition. “Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves,” he warned. “So long a term will be more dishonorable to the national character than to say nothing about it in the Constitution.” The delegates ignored Madison’s counsel and adopted the provision with Pinchney’s amendment.

  Slavery was not the only issue that divided the delegates in Philadelphia. But there was, in retrospect, no issue that more affected the Union over the next two centuries—and into the next millennium—than slavery and its legacy in racial segregation and discrimination. Every branch of the government the delegates fashioned in Philadelphia—Congress, the executive, and the judiciary—has struggled to resolve the conflicts that stemmed from the Great Compromise in 1787. Those who praise the Framers as farsighted statesmen and champions of democracy tend to ignore or brush aside the slavery provisions of the Constitution. Not one delegate refused to sign the document because of moral objections to these provisions. And, us George Mason had warned, national sins were punished by national calamities.

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  “The supreme Law of the Land”

  The adoption of the Great Compromise by delegates to the Philadelphia conventions in 1787, with its legitimation of slavery in the Constitution, did not end debate over other contentious issues. Divisions over the structure of Congress, how members of the House and Senate would be elected, and what powers they could exercise largely reflected conflicts between larger and smaller states, compoun
ded by the demands of states—both small and large—whose “wealth” depended on slavery. Even while debate continued over the provisions of what finally became Article I of the Constitution, vesting “all legislative powers” in Congress, the delegates argued over the structure and powers of the executive and judicial branches of the national government.

  The Virginia Plan, drafted by James Madison, provided for a “national executive” with “general authority to execute the national laws” and for a “national judiciary” with jurisdiction over “questions which may involve the national peace and harmony.” More questions were raised than answered by Madison’s proposals for these two branches of government. Madison himself, who prepared for the convention with months of reading on different forms of government, had no inflexible positions on how to choose executive and judicial officers, what powers they should wield in their respective spheres, and their relations with Congress. In his first speech to the convention on “executive authority,” delivered on June 1, Madison professed doubt in deciding whether that department should be “administered by one or more persons.” He then proposed that executive officers, in addition to their authority to “carry into effect the national laws,” also exercise “such other powers” which were “not legislative nor judiciary in their nature.” Madison’s remarks added nothing of substance to the vague contours of his plan. His first comments on the judicial branch, made on June 13, were equally vague. Along with his fellow Virginian Edmund Randolph, Madison moved that “the jurisdiction of the national judiciary” should include “questions which involve the national peace and harmony.” Sitting as the Committee of the Whole, the delegates adopted this motion without debate or dissent, leaving questions of federal judicial power for further deliberation.