Dark Bargain

by Lawrence Goldstone

  After four months and three days, the Convention of 1787 was over. For Madison, Hamilton, and Dickinson, it was the culmination of more than two years of work that had begun in a poorly attended, largely overlooked meeting in Annapolis.

  The misprint of the Constitution, noting 1708 as the date by which slavery would be abolished

  * Mason's refusal to sign the Constitution predated the convention's final rejection of a Bill of Rights, rendering his subsequent rationale hollow.

  † After all the provisions had been agreed to, John Dunlap printed a proof copy of the new Constitution and gave it to Washington to check. Everything was in order, with one exception. In Article I, Section 9, instead of "1808" as the date until which the slave trade would be permitted, Dunlap had printed "1708." Whether this was a simple typographical error or an attempt by the antislavery Dunlap to register displeasure with the extension of the slave trade will never be known. In any event, Washington caught the mistake and a correction was made before Dunlap printed the finished copy (see opposite).

  17. SUPREME LAW OF THE LAND

  Article VII of the Constitution was the shortest of all. It stated simply, "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." It seemed straightforward enough. If conventions in nine states approved, the Constitution would take effect, only, of course, for those nine, while any of the four remaining states that ratified later would be admitted as equals. If one or more of them refused, they would no longer be considered part of the United States.

  But brevity was deceptive.1 Endorsement by Congress, where approval was by no means certain, was required before the document could even be introduced in state legislatures. If the Constitution survived the congressional test, a state's legislature might pack a ratifying convention with opponents of the plan or even refuse to authorize a ratifying convention at all.2

  Even as the delegates held a celebratory dinner at the City Tavern on the evening of September 17, the battle for ratification began. John Dunlap had printed three thousand copies of the six-page Constitution, and these were soon officially on their way to Congress and unofficially to the legislatures and citizenry of each of the thirteen states. In Pennsylvania's case, the journey was short, since the state legislature was meeting on the second floor of the State House, just upstairs from the convention chamber, and received copies almost before the ink was dry.3 It was a good thing too, since Pennsylvania's approval, crucial to the overall scheme, hinged on getting the process started quickly.

  At that moment, the Pennsylvania legislature was dominated by federalists, as supporters of the new Constitution were called, but on September 29, less than two weeks later, the legislative session would end.4 A new session with new members would begin in November and no one knew if that assemblage would be as amenable as the current group to abandoning the Articles of Confederation in favor of this new system. Obtaining a vote to authorize a ratlfying convention before the 29th was thus of vital importance.

  The Constitution, as presented in the Pennsylvania Packet, September 19, 1787

  By the time the Constitution made it to Congress in New York on September 20, eighteen members of the convention had arrived as well, most with congressional credentials. They resumed their seats, ready to ram an approval resolution through. It was the largest turnout in Congress of the entire year. But the antifederalists were not without clout of their own. Led by Virginians Richard Henry Lee and William Grayson, and Melancthon Smith of New York, opponents of the new plan were determined to scuttle it. Lee and his cohorts stalled, brought up irrelevant measures, tried a number of procedural contrivances, and finally attempted to maneuver Congress into backing a call for a second convention.5 They succeeded in delaying the vote until September 28, but ultimately could not prevent a resolution from coming to the floor. After the vote to approve, which was recorded as unanimous, federalist congressmen dispatched a messenger to Philadelphia with the news. Riding all night, the messenger arrived early the next day and delivered the news to George Clymer, who passed it on to the speaker of the Pennsylvania assembly in time for the morning session.6

  Pennsylvania antifederalists got the news just after Clymer. They knew they would be outvoted, but tried to prevent the measure from even coming to the floor by not showing up and thus denying the assembly a quorum. The speaker dispatched the sergeant-at-arms to round up the "seceding members," only two of whom were needed to provide the assembly a critical mass. Taking those instructions one step further, a mob of Philadelphia federalists set out to effectively kidnap two antifederalist deputies. They found the unfortunate legislators, James McCalmont and Jacob Miley, hiding in their homes, then dragged them bodily to the State House and literally dumped them in the assembly chamber. The assembly minutes merely state that McCalmont and Miley "entered the house."7 A quorum was achieved and the assembly quickly voted to authorize a ratifying convention for November.

  Pennsylvania's ratifying convention began on November 20 and by December 12 it had become the second state to approve the Constitution, voting 46-23 in favor. The reason it wasn't first was that Delaware, which had originally sent its delegates to Philadelphia expressly forbidden from endorsing anything but a modest reform of the Articles of Confederation, had voted to ratify five days earlier. Six days after Pennsylvania, another "small state," New Jersey, endorsed the plan, and Georgia followed two weeks later.8 One week after Georgia, in a ratifying convention dominated by "the thunders of Oliver Ellsworth's eloquence," to paraphrase John Trumbull, Connecticut also voted to approve the plan.

  Ratification got a bit trickier after that. Of the remaining eight states, three—New York, New Hampshire, and Rhode Island—seemed set against ratification; three more—North Carolina, South Carolina, and Maryland—were on the fence; and in the two most important states in the Union—Massachusetts and Virginia—opposition was fierce.

  Massachusetts became the pivot. After the provisions of the new Constitution had been debated in town hall meetings across the Commonwealth, the federalists still faced an uphill climb. Finally, they convinced the haughty and self-important John Hancock that he was in line to be Washington's vice president in the new government, maybe even president if the general declined to serve. Hancock experienced a sudden conversion to federalism and, with him speaking in favor, Massachusetts ratified on February 6.9

  Maryland was next, but that vote was still two months away. Luther Martin and his fellow antifederalists campaigned tirelessly but, in the end, the vote for ratification was a surprising 63-11 in favor. After South Carolina ratified in May,10. New Hampshire, considered almost as antifederalist as Rhode Island (which had voted to reject the Constitution in a popular referendum in February), nonetheless voted to ratify.11

  The new United States had been born—minus Virginia, New York, and North Carolina. (No one cared that much about Rhode Island.) With the Constitution a fait accompli, eventually all four of those states went along, none more reluctantly than Virginia.

  The ratification process was an exercise in pure advocacy. Throughout the thirteen states, federalists and antifederalists alike gave speeches, wrote articles, and published pamphlets filled with distortions, half-truths, and outright lies. Those who had been among the fifty-five delegates present in Philadelphia were guiltiest of all. Ellsworth's fabrications in the Landholder essays, Gerry's equally slanted replies, Pinckney's overstatements in the South Carolina legislature, Luther Martin's screed in Genuine Information, all contributed to the propagandizing that characterized the ratification debate. In the Federalist, the best known of the postconvention essays, Hamilton, Jay, and especially Madison, parsed, quibbled, equivocated, and perverted the events in Philadelphia, all to convince New Yorkers of the virtues of strong government.12 Of course, "Brutus," to whom they were responding, if he was indeed Robert Yates, was no better.

  The ratification process became so bitter that some of the men
who had worked together in close quarters in more or less good faith for four months came to loathe each other afterwards. The most famous breakup was between Washington and Mason who, after almost four decades of friendship and mutual admiration, rarely spoke again, their contact reduced to short notes sent back and forth* When Mason died in 1792, his estrangement from Washington was among his deepest regrets.

  Mason had also alienated Madison, who had once been one of his most enthusiastic supporters. In a letter to Washington sent along with a printed copy of Mason's objections, Madison wrote, "As he persists in the temper which produced his dissent it is no small satisfaction to find him reduced to such distress for a proper gloss on it."13

  There was such a disparity in the recollections of delegates who urged ratification and those who insisted upon rejection that it is hard to believe they had sat in the same meetings. As a result, any attempt to use postconvention rhetoric to work back to a meaningful analysis of any particular constitutional provision or the delegates' motives for including it is tenuous at best.

  Clearly though, Pinckney, Ellsworth, Martin, Mason, and most of the rest of the delegates who were active in ratification were federalists or antifederalists only by coincidence. For them, the Constitution was a national document only secondarily. The forging of a nation was a far subordinate consideration to the welfare of their particular state, although they often equated the welfare of their state with that of the nation at large. In that regard, these men had advanced their thinking very little in four months in Philadelphia. They had arrived thinking of themselves as South Carolinians or Virginians or Connecticuters, and that is how they left.

  This is not to say that there was no broader perspective, no idealism, no sense of higher purpose, in Philadelphia. Quite the contrary. Without the deep vision of some of the delegates, particularly Madison, Gouverneur Morris, Dickinson, and Hamilton—and even Mason, before events turned against him—the convention certainly would have failed to produce a result that enabled a nation. Madison especially saw the potential of a single, united republic. The prevailing sentiment in 1787 was that democracy could only succeed in a small, homogenous society, where no one faction could tyrannically impose its will on another. Madison believed just the opposite—that in a large, heterogeneous society with a powerful central government, shifting alliances could empower every point of view, and thereby exert the best control over the tyranny of a majority. With the passion of true belief, Madison and those who thought like him were willing to go to almost any lengths to see their vision achieved.

  But that is precisely the point. Idealists like Madison, who see themselves as working for a higher good, are always at the mercy of pragmatists who care nothing for philosophy but simply want to win. At the convention, there was no more pragmatic a group of men than the slaveholders. They understood all too well how fervently those who favored union felt about a grand republic and, therefore, how much they could make them pay to get it. And make them pay they did. Planters like Rutledge, Butler, and the Pinckneys simply threatened to walk out if one demand or another was not acceded to. Gouverneur Morris, of course, tried the same tactic, but with less success. In response, northern entrepreneurs like Ellsworth, Sherman, and King—the very men who in public attacked slavery on moral and religious grounds—voted with slaveholders on the most fundamental elements of the new government, again not because of a higher vision, but only as a quid pro quo to the rice planters' willingness not to interfere with their ability to make money. Even Benjamin Franklin, president of the Pennsylvania Society for Promoting the Abolition of Slavery and the Relief of Free Negroes Unlawfully Held in Bondage, which had sent a bitter and scathing letter to the convention urging an end to the slave trade, endorsed a document that extended that trade for another two horrible decades.

  Watching these compromises evolve, Madison, Gouverneur Morris, and the others who believed in the possibilities of America were left with a difficult choice. They could have either abandoned their dreams by opposing the crass self-interest before them, or grudgingly gone along, and then, after the convention, defended the very compromises that they had found so repellent while in session.

  When one compromises principles too much, however, the principles themselves cease to exist, and the idealists become indistinguishable from the pragmatists they scorn. This fate befell Madison. He took so many positions on the clause extending the slave trade, for example, that determining which, if any, he actually believed is impossible. In the convention, he opposed the slave trade bitterly, even allowing himself an uncharacteristic bit of sarcasm. "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves," he said famously on August 25. "So long a term will be more dishonorable to the National character than to say nothing about it in the Constitution."14

  Once the convention ended and he was working for ratification, he made no further references to "dishonor on the national character" or the excessive "length of term" that the slave trade would remain permissible. In the Federalist, 42, Madison took up the same question, coming to a decidedly different conclusion:

  It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But . . . it ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government... Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.15

  On Tuesday, June 17, 1788, in the Virginia ratifying convention, Madison took a different position still.

  George Mason, the now-arch-antifederalist, opened the session with an assault on the slave trade clause in Article I, Section 9- "Mr. Chairman, this is a fatal section, which has created more dangers than any other," he began. "The first clause allows the importation of slaves for twenty years. Under the royal government, this evil was looked upon as a great oppression, and many attempts were made to prevent it; but the interest of the African merchants prevented its prohibition.

  "As much as I value a union of all the states, I would not admit the Southern States into the Union unless they agree to the discontinuance of this disgraceful trade, because it would bring weakness, and not strength, to the Union." Mason then went on to repeat the same condemnations of slavery that had filled his convention speech and with which Virginians were well familiar. Then, however, in his desperation to defeat the plan, he presented an argument that he would never have made in Philadelphia, nor probably anywhere else.

  And, though this infamous traffic be continued, we have no security for the property of that kind which we have already. There is no clause in this Constitution to secure it; for they may lay such a tax as will amount to manumission. And should the government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years; for the 5th article, which provides for amendments, expressly excepts this clause. I have ever looked upon this as a most disgraceful thing to America. I cannot express my detestation of it. Yet they have not secured us the property of the slaves we have already. So that "they have done what they ought not to have done, and have left undone what they ought to have done."16

  Having spent two decades insisting that he was frantic to fi
nd a means of forcing his fellow Virginians to end their reliance on slavery, George Mason had here admitted that one of his reasons for refusing to endorse the Constitution was that it might well achieve that very aim. In doing so, he presented much the same arguments to Virginians that Rawlins Lowndes had in South Carolina—that the Constitution did not sufficiently protect the institution of slavery.

  As General Pinckney had responded to Lowndes, it would now fall to a Virginia federalist to respond to Mason, to demonstrate that the Constitution was, in fact, a document that promoted and even encouraged slavery. Madison, the philosopher, the father of the Constitution, took on the task.

  He dealt with the slave trade first. "We are not in a worse situation than before," he assured his fellows. "That traffic is prohibited by our laws, and we may continue the prohibition. . . . Under the Articles of Confederation, it might be continued forever; but, by this clause, an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances." As he soon made clear, the "circumstances" to which he referred was the need for Virginia to sell excess slaves to work the hellish rice plantations in South Carolina.

  "The gentlemen from South Carolina and Georgia argued in this manner," he said. " 'We have now liberty to import this species of property, and much of the property now possessed had been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we should be obliged to go to your markets.' I need not expatiate on this subject."17 Under the Constitution, Madison seemed to be assuring the planters, all Virginians needed to do was hang on for another twenty years, and those markets would spring open for them.