Constitutional Myths

by Ray Raphael

  Madison insisted that “the enlightened and impartial part of America” should not be held hostage to “the minority,” as he called delegates from the small states. “If the principal States comprehending a majority of the people of the U. S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States would by degrees accede to it.” Principal States—so long as Virginians and Pennsylvanians spoke of themselves in that manner and expected those from lesser states to “accede,” they were unlikely to calm the fears of delegates from Delaware and New Jersey.21

  Morris raised the ante. He had come to the Convention not only as “a Representative of America” but also “in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention.” Others, he said, had not been so principled. All the talk of protecting the interests of small states made him “suppose that we were assembled to truck and bargain for our particular States.” Voting by states in the second branch would only perpetuate this sad state of affairs, producing “constant disputes & appeals to the States which will undermine the Genl. Government.” This was precisely the evil the Convention had hoped to remedy, for “State attachments, and State importance have been the bane of this Country. We can not annihilate; but we may perhaps take out the teeth of the serpents.”22

  As delegates debated the committee’s report, the devil was in the details. Setting aside for the moment the report’s most controversial provision, equal votes for all states in the second house of Congress, delegates tried to calculate the “equitable ratio of representation” in the first house. Should representation be determined by population, by property, or by tax contributions to the federal treasury? And whatever method they adopted, until a census could be taken, how should they allocate representatives in the first Congress to convene under the new Constitution?

  No state wanted to be shortchanged, so delegates resumed their bickering. Gouverneur Morris again voiced displeasure with the blatantly self-serving debates. The states, he said, “had many representatives on the floor,” while few deemed themselves “representatives of America.”23

  George Washington, as the Convention’s president, could not express his views openly, but he did grouse in private. To his former aide-de-camp Alexander Hamilton, who had abandoned the Convention in frustration, he complained that “narrow minded politicians … under the influence of local views” were impeding all progress. “The state of the Councils,” he reported, was spiraling downward, leaving “little ground on which the hope of a good establishment can be formed.” The parochial interests within the Convention left him uncharacteristically despondent: “I almost despair of seeing a favourable issue to the proceedings of our Convention, and do therefore repent having had any agency in the business.”24

  Even more trouble lay ahead.

  On July 11, the day after Washington complained to Hamilton, with the committee’s compromise still on the table, South Carolina’s Pierce Butler and Charles Cotesworth Pinckney moved “that blacks be included in the rule of representation, equally with the whites.” It was a bold maneuver. One month earlier, on June 11, delegates had decided that representation should be “in proportion to the whole number of white & other free Citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each State”—the now-famous three-fifths compromise. They had not settled on that fraction arbitrarily. Back in 1783, the Confederation Congress had decided to count each slave as three-fifths of a free person in fixing a state’s quota for the requisition of funds, so delegates had used the same fraction, “this being the rule in the Act of Congress agreed to by eleven States, for apportioning quotas of revenue on the States” four years earlier. Yet now, suddenly, three-fifths no longer satisfied delegates from South Carolina and Georgia. Butler explained their reasoning: “the labour of a slave in S. Carola. was as productive & valuable as that of a freeman in Massts., … and consequently an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property.”25

  Nathaniel Gorham, a Massachusetts delegate who presided over the Convention when it met in the informal Committee of the Whole House, reminded the southerners that in 1783, when Congress was trying to figure out who should bear the burden of taxation, “the delegates representing the States having slaves” had argued “that the blacks were still more inferior to freemen.” Now, “when the ratio of representation is to be established, we are assured that they are equal to freemen.”

  In response, North Carolina’s Hugh Williamson immediately “reminded Mr. Ghorum [Gorham] that if the Southn. States contended for the inferiority of blacks to whites when taxation was in view, the Eastern States on the same occasion contended for their equality.” Both sides had reversed their positions. Williamson was content with preserving the three-fifths compromise, as were all those who did not want yet another round of argumentation.26

  Butler’s and Pinckney’s motion was voted down, but Butler would not give up. The next day, July 12, he pushed once again for representation “according to the full number of inhabts. including all the blacks,” and the day after that he expressed in a forthright manner why this was so important: “The security the Southn. 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.”

  Gouverneur Morris noted that the southern states were not the only ones fearful of future incursions on their rights. He imagined a time when the southern states, with room to expand, “will in a little time have a majority of the people of America” and perhaps trample on the rights of northeastern states, which depended on their fisheries and on commerce.27

  As delegates with various interests jockeyed for position on these interrelated issues—slave states and free, small states versus large, northeastern states versus those looking to expand westward, plantation-based agriculture versus fishing and commerce—some drew lines in the sand. Luther Martin said he would prefer the nation split into “two Confederacies” if states were not equally represented in the second branch. North Carolina’s William Richardson Davie issued a new ultimatum on behalf of the three-fifths compromise: if blacks were not counted in at least that proportion, his state “would never confederate” and “the business [of the Convention] was at an end.” Insults were hurled back and forth. “The States that please to call themselves large, are the weekest in the Union,” Martin pronounced. “Look at Masts. Look at Virga.” We are left to imagine Gerry’s heated, and perhaps undignified, response; Madison reported only that he “animadverted on Mr. L. Martins remarks on the weakness of Masts.”28

  When would this end, and how?

  On Sunday delegates observed the Sabbath, and then on Monday, July 16, without any further debate, they voted on the entire compromise, including both “equality of votes in the second branch” and counting each slave as three-fifths of a free person for purposes of representation in the first branch. The package passed by the slimmest of margins: five states in favor, four states opposed, with Massachusetts divided.29

  Even after the final vote, delegates from large states refused to concede. Virginia’s Edmund Randolph moved that the convention adjourn for the day “that the large States might consider the steps proper to be taken in the present solemn crisis of the business.” New Jersey’s William Paterson called his bluff: why just for the day? Perhaps it was time to adjourn for good, rescind “the rule of secrecy,” and consult “our Constituents.” That would be the end of any compromise, all delegates realized. The Convention granted Randolph’s request to allow the large states to caucus, but the caucus found no alternative solution the small states would accept.

  To no great fanfare, and with more ill will than good, delegates had given us the now celebrated Great Compromise.<
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  While the broad outlines of representation seemed settled, controversy continued. The three-fifths compromise still had not fully resolved the controversy over “all other persons,” the Constitution’s euphemism for slaves. On August 6, in its fleshed-out draft of a constitution, the Committee of Detail gave Congress the power “to regulate commerce with foreign nations, and among the several States.” Did this mean that the eight northern states, if they so wished, could curtail slavery either by a ban on slave importation or by a prohibitive impost? To reassure the southern states, the committee stipulated that Congress would not be allowed to tax or prohibit “the migration or importation of such persons as the several States shall think proper to admit.”30

  On August 21, Maryland’s Luther Martin, a slave owner himself, moved to strike that provision. Since each imported slave would add to a state’s representation, states would be rewarded politically for engaging in the slave trade, he argued. “It was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.” The following day George Mason, whose large plantation, near Washington’s Mount Vernon, was worked by slaves, denunciated slavery for both practical and moral reasons. It impeded “the immigration of Whites, who really enrich & strengthen a Country,” while it produced “the most pernicious effect on manners.” In words that are now often quoted, he boldly pronounced: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this.”31

  Did these slaveholders seriously oppose the very institution that supported them?

  South Carolina’s Charles Cotesworth Pinckney challenged Mason’s high-toned stance, alleging baser motives: “As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants.” This surplus of slaves would allow Virginians to establish “a monopoly in their favor,” setting “their own terms for such as they might sell.” Mason’s moralizing merely protected Virginia’s local industry—breeding slaves for the market—which foreign imports would impair.32

  Other delegates from South Carolina and neighboring Georgia chimed in to defend the “right” to own slaves. Charles Pinckney (Charles Cotesworth Pinckney’s cousin) argued from history: “If slavery be wrong, it is justified by the example of all the world.” Pinckney “cited the case of Greece Rome & other antient States; the sanction given by France England, Holland & other modern States. In all ages one half of mankind have been slaves.”

  Georgia’s Abraham Baldwin (a transplanted son of Connecticut) offered an argument that defenders of slavery would repeat many times before the Civil War: slavery was “a local matter,” not a “national object,” and Georgia would refuse to accept any attempt “to abridge one of her favorite prerogatives.” Charles Pinckney offered a similar threat: “South Carolina can never receive the plan if it prohibits the slave trade.” There must be no “meddling with the importation of negroes.”

  South Carolina’s John Rutledge was particularly blunt: “Religion & humanity had nothing to do with this question—interest alone is the governing principle with nations.” It was perhaps the brashest, and most honest, statement of the summer.33

  We might think that the New England delegates, who opposed slavery, would fight to ban slave importation, but they did not. “Let us not intermeddle” in the dispute between the Upper and Lower South, said Connecticut’s Oliver Ellsworth. “The morality or wisdom of slavery are considerations belonging to the States themselves.” Further, because slaves “multiply so fast in Virginia & Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary,” it would “be unjust towards S. Carolina & Georgia” to limit their importation.34

  Of course politics was in play. Just as the South depended on slavery, New England could not survive without commerce. Because commerce could not flourish if each state had separate navigation laws and imposts, the Committee of Detail had assigned the power of commercial regulation to Congress in its draft of the Constitution—but it added that no navigation act could be passed without a two-thirds supermajority in both houses. This restriction bothered New Englanders, who worried that a minority of states could impede commerce, but it pleased southerners because it prevented northerners, who would enjoy a slight majority in Congress, from passing laws that hurt southern interests. Further, as many New England shipowners and merchants took part in the foreign and interstate slave trade, attempts to limit that trade would cut against their states’ interests.35

  Many delegates recognized that the issues represented by the navigation controversy and slave importation were linked, so the Convention sent both to a committee. Two days later, on August 24, the committee issued its report: Congress could not prohibit slave importation until the year 1800; it could levy import duties on slaves “not exceeding the average” of other duties, and the requirement for a congressional supermajority to pass commercial regulation would be dropped. Although there were gains and losses across the board, the contingent from the Deep South insisted on two other concessions: an extension of the allowance for slave importation until 1808 and a fugitive slave clause that in the nineteenth century would give rise to poisonous controversy: “If any person bound to service or labor in any of the U. States shall escape into another State, he … shall be delivered up to the person justly claiming their service or labor.”

  All of these matters were decided on the basis of interests, not of philosophy. Although delegates had brought abstract notions of sovereignty and representation to bear on the interest-driven battles leading to the Great Compromise, political motivations in the multifaceted compromises over slavery (both the deal struck in late August and the better-known three-fifths compromise) were more difficult to disguise. In the thick of the debate over slave importation, Rufus King of Massachusetts commented, “the subject should be considered in a political light only,” and that is exactly the way delegates to the Federal Convention dispatched the embarrassing matter of slavery. Philosophical talk of liberty and human rights gave way in the end to legislative deal making.36

  On August 24, in an unexpected and unlikely manner, the small-state, large-state division resurfaced. Delegates had debated the method of selecting the president several times, and the broad outlines of a solution seemed settled: the president would be “elected by ballot by the Legislature” and serve a single seven-year term. But how, exactly, would Congress choose the president? Would the House and Senate meet separately and would each have to approve the choice, as they did with legislative acts? If so, what if they disagreed? Or should they meet together in a special joint session, even though that would not happen in any other context? And if they met jointly, would each member have an equal vote, even though House members outnumbered senators?

  Again, small-state concerns emerged. New Jersey’s Jonathan Dayton (the Convention’s youngest delegate) warned that if the two chambers met in joint session, the Senate, in which each state had an equal say, would be overwhelmed in the voting by the much larger House, dominated by large-state representatives. “A joint ballot would in fact give the appointment to one House,” Dayton complained. The two chambers should vote separately, he concluded, so small states in the Senate could check the large states in the House, as with normal legislation.37

  Though Dayton lost, he and his New Jersey colleague David Brearly countered with another proposal: Congress would choose the president in a joint session, but the entire delegation from each state would cast a single vote, as in the old Articles of Confederation. This blatantly small-state measure also failed.

  All along, Gouverneur Morris had vigorously opposed congressional selection of the president because he believed that method would make the executive branch too dependent on the legislature. Although Morris represented a large state, he now viewed the small-state delegates as potential allies; working
together, they might be able to revamp the system of presidential selection. In a manner typical of the Convention’s proceedings, Morris, Dayton, and Brearly got the matter sent to a committee consisting of one member from each state. Brearly was its president and Gouverneur Morris a member.38

  On September 4, the committee presented its report to a stunned Convention. What had been previously decided was overturned. The president was allowed to repeat in office, his term was shortened from seven years to four, and congressional selection was scrapped altogether. Instead, state legislatures would arrange for the selection of special electors who would choose the president. What we now call the Electoral College was born, the direct result of political finagling by a handful of delegates.

  When trying to explain the committee’s highly original method of presidential selection, Gouverneur Morris admitted, “It had been agreed to in the Committee on the ground of compromise.” The number of electors for each state would equal that state’s number of representatives and senators; large states would derive an advantage, but even the smallest state would be guaranteed three electors. Electors were to cast ballots for two candidates, one of whom could not be from the elector’s home state, and the winner would need a majority, not just a plurality, of the electors’ votes; taken together, these measures prevented large states from electing favorite sons and thereby offered some protection to small states. Further, because many or most elections were not expected to produce a clear winner (George Mason grumpily suggested that the Electoral College would fail to choose a president nineteen times out of twenty), runoffs featuring the five leading contenders would be determined in the Senate, where small states and large states had equal votes. The Convention later reassigned the determination of this runoff from the Senate to the House, but with members voting by state delegations—one state, one vote—to satisfy the small states.39