Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence

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Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence Page 15

by Richard Beeman


  Some within the Convention were outraged by the audacity of the plan. James Madison, casting his eyes around the Assembly Room as Virginia governor Edmund Randolph delivered the speech outlining the details of the Virginia Plan, observed a variety of reactions: emphatic agreement among the Virginia and Pennsylvania delegates; mild approval from New York delegate Alexander Hamilton; but clear disapproval from the other two members of the New York delegation, Robert Yates and John Lansing. Even more striking, New Jersey delegate William Paterson was clearly shocked by what he was hearing. A highly intelligent but rigid and puritanical soul, Paterson would emerge as one of the principal spokesmen for the interests of the smaller, less-populous states. Paterson could be seen frantically scribbling on a notepad: “Objection!” He, like Robert Yates, believed that the adoption of the Virginia Plan would create a “consolidated union in which the idea of the states should be nearly annihilated.”

  But Paterson and Yates, observing the rule of secrecy, confined their outrage to the Assembly Room of the state house. As it would turn out, the rule of secrecy operated powerfully in favor of those delegates who wished to see such drastic change. Had a strong advocate of the sovereign power of the individual states—such as Virginia’s Patrick Henry, who was elected a delegate to the Convention but declined to serve—heard of this radical deviation from the instructions of the Continental Congress, he would have mounted his horse and rode to Philadelphia to join his delegation. But Henry and other politicians jealous of guarding the power of their states were not apprised of the proceedings, and for that reason, on May 30—just three days after the Convention began its work—a majority of state delegations, with six of the eight states present voting in favor, agreed that “a national government ought to be established consisting of a supreme Legislative, Executive, and Judiciary.” They had voted for a revolution in the structure of America’s Continental government.

  It was an amazing victory for that small cadre of nationalist-minded delegates who had cooked up the Virginia Plan, but their attempt at revolutionary change, once launched, proved difficult both to sustain and to control. Over the course of the summer, the delegates would debate, disagree, and ultimately compromise on a host of issues. The most divisive of those issues—those involving the apportionment of representation in the national legislature, the powers and mode of election of the chief executive, and the place of the institution of slavery in the new Continental body politic—would change in fundamental and unexpected ways the shape of the document that would eventually emerge on September 17, 1787.

  THE FOUNDING FATHERS AND FEDERALISM

  The delegates haggled over how to apportion representation in the legislature off and on for the entire period between May 30 and July 16. Those from large, populous states such as Virginia and Pennsylvania argued that representation in both houses should be based on population, while those from smaller states such as New Jersey and Maryland argued for equal representation for each state. The so-called New Jersey Plan, presented by William Paterson in mid-June, called for a “federal” rather than a “national” government, and its essential feature—a single-house legislature in which each state was to have only one vote—seemed to be a reincarnation of the Articles of Confederation. In fact, the New Jersey delegates, along with most of the delegates from other small states, were less concerned about limiting the power of the new government than they were interested in gaining maximum power for their states within the newly strengthened government.

  The protracted debate over these alternatives was an unedifying, even unattractive, affair. At one point, Gunning Bedford, a corpulent, blustery delegate from Delaware, confronted the principal supporters of the Virginia Plan from Virginia, Pennsylvania, and Massachusetts, thundering, “I do not, gentlemen, trust you.” Bedford then threatened that if the small states did not get their way they might well, in pursuit of an alternative union, “find some foreign ally of more honor and good faith.”

  The compromise that eventually emerged from that debate, championed most energetically by the delegates from Connecticut, was an obvious one—so obvious that it was proposed off and on by several delegates almost from the beginning of the contentious six-week period between the end of May and the middle of July: representation in the lower house would be apportioned according to population, with each state receiving equal representation in the upper house. In the final vote on the Connecticut Compromise, occurring on July 16, five states supported the proposal with four opposing, including Virginia and Pennsylvania, and one state divided. James Madison in particular was disconsolate. He was convinced that the compromise would destroy the very character of the national government he hoped to create. Indeed, the next morning Madison and several other large-state delegates met to consider whether they should leave the Convention altogether. In fact, not only did they not leave the Convention, but they managed to turn defeat into victory. In an astonishing reversal of his “original intent,” Madison, during the debate over ratification of the Constitution, would use his “defeat” in the controversy over representation to fashion an entirely new definition of federalism. In “Federalist No. 39” he defended the proposed new constitution against its critics by praising the different modes of representation in the House and Senate—with the House representing the people of the nation at large and the Senate representing the residual sovereignty of the states—as one of the features that made the new government part national and part federal. No one knew how that new definition of federalism would actually work in practice, and it would remain a source of contention for much of the nation’s early history. In this, as in so many areas, the so-called original meaning of the Constitution was not at all self-evident—even to the framers of the Constitution themselves.

  THE FOUNDING FATHERS AND THE PRESIDENCY

  The debate among the delegates over the nature of the American presidency was more high toned and, if anything, even more protracted and confusing than that over representation in the Congress. At one extreme, nationalists like James Wilson and Gouverneur Morris argued forcefully for a strong, independent executive capable of giving “energy, dispatch, and responsibility” to the government. They urged their fellow delegates to give the president an absolute veto over congressional legislation. At the other end of the spectrum, Roger Sherman, a plainly dressed, plainspoken delegate from Connecticut who would prove to be one of the most sagacious members of the Convention, spoke for many delegates when he declared that the “Executive magistracy” was “nothing more than an institution for carrying the will of the Legislature into effect.” This led Sherman to the conclusion that the president should be removable from office “at pleasure” any time a majority in the legislature disagreed with him on an important issue. (By that same logic, Sherman would have allowed the president to be impeached by a majority of Congress for just about any reason at all.)

  Many—perhaps most—of the delegates thought that the executive should be elected by the national legislature; still others thought the executive should be elected by the state legislatures or even by the governors of the states. James Wilson was virtually the only delegate who came out unequivocally for direct election of the president by the people. He believed that it was only through some form of popular election that the executive branch could be given both energy and independence.

  James Madison kept changing his mind. His initial version of the Virginia Plan called for election of the president by the national legislature. And although he has subsequently gained the reputation of being one of the foremost proponents of the doctrine of separation of powers, he muddled things in the Convention by proposing a merging of the executive and judicial powers in a “Council of revision” composed of both the executive and a “convenient number of the National Judiciary.” Madison gradually came around to the idea that the executive and judicial functions should be separated, but he continued to argue for the selection of the president by Congress up until the final days of the Convention. After reading Ma
dison’s notes on the debates in the Convention—our primary resource for learning about what happened inside the Pennsylvania State House that summer—one gets the sense that his eventual acquiescence to the idea of an electoral college as the method of presidential election was marked as much by weariness as by enthusiasm.

  James Wilson, realizing that his proposal for direct popular election of the president was gaining no favor, proposed a version of the electoral college in early June, but the delegates didn’t like that proposal any more than they liked his proposal for direct popular election, voting it down overwhelmingly at that point. They voted against some version of the proposal on numerous occasions between early June and early September of 1787, only agreeing to the version contained in our modern Constitution (modified slightly by the Twelfth Amendment) grudgingly and out of a sense of desperation, as the least problematic of the alternatives before them.

  It has often been observed that much of the framers’ difficulty in deciding how to elect the president was the result of their misgivings about democracy—their fear that the people of the nation could not be trusted to make a wise choice for their chief executive. In truth, it was not so much that the Founding Fathers distrusted the inherent intelligence of the people but, rather, that they had a very clear and realistic understanding of the provincialism of the American people. They understood that America’s vast landscape, the poor state of its communications, and the diversity of its cultural character and economic interests would make it extremely difficult for any single candidate to gain a majority of the popular vote. How could a voter in Georgia know the merits of a candidate in New York or vice versa? Thus they very quickly cast aside James Wilson’s proposal for direct election of the president as unworkable.

  The other obvious solution—election by members of a national Congress whose perspective was likely to be continental rather than provincial—was ultimately rejected because of the problems it created with respect to the doctrine of separation of powers: the president, it was feared, would be overly beholden to, and therefore dependent upon, the Congress for his election. The creation of an electoral college was a middle ground, and while many delegates feared that locally selected presidential electors would be subject to the same sort of provincial thinking as ordinary citizens, they reluctantly came to the conclusion that it was the best they could do while still preserving an adequate separation of power between the executive and legislative branches. It was a highly imperfect solution to a real problem, but in the context of the times, there may well have been no better alternative.

  THE FOUNDING FATHERS AND SLAVERY

  The delegates’ commitment to principles of equality as articulated in the Declaration of Independence was, even in the case of free adult males, a limited one. (For example, most of the delegates supported the imposition of property qualifications for voters in their individual states.) But nowhere were those limitations more obvious than during those instances when the subject of slavery intruded into their deliberations. By 1787 slavery in America was in a state of decline. It remained a significant part of the social and economic fabric in five of the states represented in the Convention, but only two states—South Carolina and Georgia—were inclined to argue for an expansion of America’s “peculiar institution.” Yet the delegates in Philadelphia failed to eradicate that great contradiction to the core values of liberty and equality on which America had declared its independence. Instead, they enshrined the institution of slavery within their new Constitution.

  Although neither the word “slave” nor “slavery” is mentioned anywhere in the Constitution, contention over slavery pervaded the debates on the Constitution throughout the whole of the summer of 1787. It was, for example, impossible to discuss questions relating to the apportionment of representation without confronting the fact that the slave population of the South—whether conceived of as residents or property—would affect the calculations for representation. The delegates argued about the proper formula for representing slaves through much of the summer. The final resolution of that issue—a formula by which slaves would be counted as three-fifths of a person in apportioning both representation and taxation—was a purely mechanical and amoral calculation designed to produce harmony among conflicting interests within the Convention. As many disgruntled delegates pointed out, it had little basis either in logic or morality, but in the end, the need for a consensus on the issue, however fragile that consensus might be, outweighed all other considerations.

  The debate over the future of the international slave trade was in many respects more depressing than that which culminated in the three-fifths compromise. Only the delegates from South Carolina and Georgia were determined to continue what most other delegates believed to be an iniquitous trade, yet their insistence that the trade continue for at least another twenty years carried the day. However troubled delegates from the other states may have been, their concern for harmony within the Convention was much stronger than their concern for the fate of those Africans whose lives and labor would be sacrificed by the continuation of the slave trade.

  Finally, the delegates adopted without dissent a provision requiring that any “Person held to Service or Labour in one State … [and] escaping into another, … shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” By means of that tortured language, and without mentioning either the word “slaves” or “slavery,” the delegates made a fugitive-slave clause an integral part of our federal compact. It was the one act of the Convention that not only signaled the delegates’ grudging acceptance of slavery but also made the states that had moved either to abolish or gradually eliminate slavery in the aftermath of the Revolution actively complicit in their support of that institution.

  THE QUESTION OF A BILL OF RIGHTS

  On September 12, just five days before the Convention was to adjourn, George Mason of Virginia rose and expressed his wish that the nearly completed draft of the Constitution be “prefaced with a Bill of Rights.” It would, he said, “give great quiet to the people.” Citing as examples the bills of rights in the individual state constitutions, Mason believed that the delegates to the Philadelphia Convention might prepare a bill of rights “in a few hours.”

  Mason had good reason to make such a suggestion. As the principal draftsman of the Virginia Declaration of Rights, he believed that bills of rights articulating the fundamental liberties of the citizenry should be part of any proper constitution. And as the delegates to the Convention would discover in the coming months, there were a good many in America—probably a majority of citizens—who shared that belief. But the delegates must have groaned audibly at Mason’s suggestion. Roger Sherman of Connecticut quickly disagreed with Mason, arguing that since there was nothing in the proposed Constitution that was contrary to the provisions in the various state bills of rights, there was no need to duplicate them by adding a bill of rights to it. Mason fought back, insisting that a federal bill of rights guaranteeing that the new government would not encroach on the people’s fundamental liberties—such as freedom of speech, press, and religion, and trial by jury—was essential if those liberties were to be protected. But the delegates turned a deaf ear. When the matter was put to a vote, after a discussion lasting no more than a few moments, not a single state delegation supported Mason’s proposal.

  That decision, arrived at hastily and casually, would prove to be one of the most serious mistakes made by the men who drafted the Constitution. When Thomas Jefferson, serving as ambassador to France, received a copy of the completed Constitution from James Madison, he was unable to contain his unhappiness at the absence of a bill of rights. “The omission of a bill of rights, providing clearly and without the aid of sophisms, for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters,” was, Jefferson wrote in dismay to his friend, a grievous error. He believed t
hat a bill of rights was an essential protection “against doing evil, which no government should decline,” and he expressed the hope that a bill of rights would be added to the Constitution without delay.

  How could the delegates have ignored the lessons of their revolutionary past and not included a bill of rights in their proposed plan of union? In the months following, as they tried to persuade a skeptical public to endorse the document, supporters of the Constitution would argue that the proposed federal government was primarily concerned “with objects of a general nature,” and that any attempt to replicate the state bills of rights would be not only redundant but also dangerous. “Who will be bold enough,” James Wilson asked, “to undertake to enumerate all the rights of the people?” His fear was that if the enumeration of those rights was not complete, then everything not explicitly mentioned would be presumed not to be a right at all. Madison was equally cavalier, calling the state bills of rights “parchment barriers” that had not served to stop the state governments from invading the rights of their citizens when it suited their purpose.

  In fact, these glib rationalizations were probably not the real reasons for the omission of a bill of rights. By mid-September the delegates were profoundly weary of their labors and desperately anxious to return to the comfort of their homes. Although Mason had claimed that “a bill might be prepared in a few hours,” the delegates in the hot, stuffy Assembly Room knew better. It would be a difficult, arduous task filled with contention. And they wanted to go home. They would, however, pay a price for their impatience in the coming months.

 

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