If we look back on our grade school education, we remember being taught the very fundamentals of what went on at the Constitutional Convention. We remember the key areas of contention between the individual states – how the government should be structured, how the representatives from the states should be apportioned, how the interests of the smaller states and the interests of the larger states can both be equally represented in government, how the states can retain their sovereign power in the face of a centralized, federal government, and what to do about the slaves and the issue of slavery. But so much more was accomplished. The Constitutional Convention and the drafting of the Constitution represented something much more monumental and significant.
The Constitutional Convention (also known as the Philadelphia Convention) took place from May 25 to September 17, 1787, in Philadelphia, Pennsylvania. Its purpose was to address problems in governing the United States of America under the Articles of Confederation following independence from Great Britain. The Convention was originally intended to amend the Articles of Confederation to make it more effective in dealing with issues common to all the states and acting on their behalf. The inherent weaknesses of the Articles of Confederation made the document unworkable and the national government ineffective. The government was ineffective to perform common functions on behalf of all states, as the Revolutionary War highlighted very clearly. For example, some such weaknesses included:
(1) the national government created by the Articles of Confederation was weak.
(2) No independent Executive
(3) Congress lacked the authority to impose taxes (collect taxes from the states) to cover national expenses and debts
(4) Because all 13 states had to ratify amendments, one state’s refusal to do so prevented reform
(5) Nine of the 13 states had to approve important legislation, which meant that 5 states could frustrate any major proposal.
(6) Although Congress could negotiate treaties with foreign nations, any such treaty had to be ratified by all the States.
Apparently, however, the intention of certain delegates, namely James Madison and Alexander Hamilton, was not to amend the Articles but rather to create a new government altogether. The delegates persuaded a very sick and debilitated George Washington to act as the President of the convention and to preside over it after several attempts to organize such a meeting had failed to spark sufficient interest.
The 55 delegates who drafted the Constitution included many men who we consider today as our “Founding Fathers.” These are the men we credit for giving us our new nation, as so perfectly conceived and designed. A few of our most important Founders were not present at the Convention. Thomas Jefferson, one of our most prolific and well-read Founders, was in France during the Convention, acting as Minister to that country. John Adams was also abroad on official duty for the newly-independent nation, as Minister to Great Britain. Patrick Henry was also absent; he refused to go because he “smelt a rat in Philadelphia, tending toward the monarchy.” He might have been referring to Alexander Hamilton, who strongly admired the British monarchy. Also absent were John Hancock and Samuel Adams. All the states sent delegates to the Convention, except Rhode Island which refused to send any.
Connecticut: Oliver Ellsworth, William Samuel Johnson, Roger Sherman
Delaware: Richard Bassett, Gunning Bedford Jr., Jacob Broom, John Dickinson, George Read
Georgia: Abraham Baldwin, William Few, William Houstoun, William Pierce,
Maryland: Daniel Carroll, Luther Martin, James McHenry, John Francis Mercer,
Massachusetts: Elbridge Gerry, Nathaniel Gorham, Rufus King, Caleb Strong
New Hampshire: Nicholas Gilman, John Langdon
New Jersey: David Brearley, Jonathan Dayton, William Houston, William Paterson, William Livingston
New York: Alexander Hamilton, John Lansing Jr., Robert Yates
North Carolina: William Blount, William Richardson Davie Sr., Alexander Martin, Richard Dobbs Spaight, Hugh Williamson
Pennsylvania: George Clymer, Thomas Fitzsimons, Benjamin Franklin, Jared Ingersoll, Thomas Mifflin, Gouverneur Morris, Robert Morris, James Wilson
South Carolina: Pierce Butler, Charles Cotesworth Pinckney, Charles Pinckney, John Rutledge
Virginia: James Madison, James Mason, George Washington, John Blair, James McClurg, Edmund Randolph, George Wythe
Almost immediately, it was understood that our nation would need to be a republic rather than a true democracy. It would be a nation of laws and not a nation of men. It would be ruled by supreme law and not the mob. In 1780, seven years before the Constitution was drafted, Massachusetts put in its Constitution two very important principles that would be later embraced in the US Constitution – the concept of separation of powers and the rule of law. As it stated in the constitution governing the Commonwealth of Massachusetts: “In the government of this commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them — to the end that it may be a government of laws and not of men.”
Most people assume that this country is a democracy, but it isn’t truly so. It is a republic, or a democratic republic as some call it. Understanding the difference between these two “forms” of government is essential to appreciating the fundamentals involved. A “democracy” operates by the direct majority vote of the people. When an issue is to be decided, the entire population votes on it and the majority wins and rules the day. The Founders explained that democracy rule is one that is guided by the majority “feeling.” (ie, how the majority happens to be “feeling” at the time). The Founders therefore termed it “mobocracy.” Example: in a democracy, if a majority of the people decides that the minority group can no longer own property, then the minority group is no longer allowed to own property. In a Democracy, the individual, and any group of individuals composing any minority group, have no protection against the unlimited power of the majority. As James Madison wrote: “Theoretic politicians, who have patronized this species of government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”
Our Founders studied history and knew that no democracy ever lasted long – looking especially at Greece and Rome. Someone once wrote: “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world’s greatest civilizations has been 200 years. These nations have progressed through this sequence: “From bondage to spiritual faith; From spiritual faith to great courage; From courage to liberty; From liberty to abundance; From abundance to selfishness; From selfishness to apathy; From apathy to dependence; From dependence back into bondage.” [Alexander Fraser Tytler, a Scottish born British lawyer and writer (1747-1813) ?].
A “republic” on the other hand is where the general population elects representatives who then are constrained in their representation by the Constitution and other laws. A republic is a nation ruled by law. There is a degree of insulation between the people (who might try to rule in a frenzied mob style) and government rule. A republican form of government has a very different purpose and an entirely different form, or system, of government than a pure democracy. Its purpose is to control rule-making. More specifically, its purpose is to control the majority. It is designed to protect the minority from oppression by the majority. It is designed to protect the individual’s (EVERY individual’s) God-given, unalienable rights and the liberties of people in general. Our particular republican form of government has a separation of power because our Founders understood the inherent weakness and depravity of man. They knew that people are basically weak, sinful and corruptible, and will pit one men against another other, making it difficult to pass laws and make changes that are fair to everyone.
With regard to the choice of a republican form of government, Madison made an observation in The Federalist Papers (Federalist No. 55): “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government (that of a Republic) presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.” [See later for a discussion of “Democracy v. Republic” by David Barton of Wallbuilders.com]
It is worth noting that the first genuine and solidly-founded republic in all history was the one created by the Constitution of Massachusetts in 1780. The Founders didn’t have to look far for a template for our US Constitution.
As a very old and very tired Benjamin Franklin was leaving the building where, after four months of hard work, the Constitution had been completed and signed, a lady asked him what kind of government the convention had created. The very wise Franklin replied; “A Republic, ma’am if you can keep it.”
At the Convention, there were 3 parties, each with a strong opinion as to the purpose of a government representing all the states. The first group was the Monarchists who were intent on stripping the individual states of all their sovereign powers and substituting one unitary, all-powerful government, to be responsible for all land and all people. Its most vocal proponent was Alexander Hamilton. He made a famous speech at the Convention in which he avowed his admiration for the British constitution and expressed his desire that the delegates model the American government after the British system. He called for a president who would be appointed for life, senators with life terms, and power vested in the president to appoint all governors. Each of these mirrors the British model.
The second group was the Nationalists, who pushed for a strong centralized “national” government and was against sharing of power with the states. Its most vocal proponent was James Madison. It would have a national executive branch, a national legislative branch, and a national judiciary branch. There would be little or no deference or respect for the states. Specifically, Madison wanted a strong centralized (power centralized in the government) modeled after his state of Virginia and largely dominated by officials from Virginia. In fact, Madison arrived at the Convention several days early in order that he would have time to draft a series of proposals on which he believed the Constitution should be based. His intention was to introduce the other delegates to his proposals and then vote on them and ratify them. His series of proposals was known as the “Virginia Plan.” Initially the delegates voted on the plan in approval but as the days and weeks went on, they overwhelmingly discarded it for the federalist system.
The third group was the Federalists, who luckily won the day at the Convention. They wanted the states to retain their sovereign power. Consequently, their system was one that divided the powers of government between the central government and state and local governments. This was obvious in the limited powers of the government, in the make-up of delegates in the legislative branch, including the election of Senators by the individual state legislatures rather than the people, the amendment process, and the jurisdiction assigned to the federal court system.
The issue on the mind of almost every representative at the Constitutional Convention was what kind of government was best for the new republic. Certain states submitted plans for a republican government, however, the most popular was the plan submitted by the Virginia delegation led by James Madison (and including George Mason, Edmund Randolph, and even George Washington). Randolph presented what was called “The Virginia Plan,” a “nationalist” government scheme which would discard the Articles of Confederation and replace it with a government having three distinct branches: legislative, executive, and judicial. (This scheme was primarily the work of James Madison, who had done his homework on the history of ancient and more modern republican governments). Using Montesquieu’s theory of checks and balances it was intended to ensure that no group could have too much authority, which could lead to tyranny. Although the delegates supported most of the proposed principles of the Virginia Plan, they were in disagreement in certain areas of the plan. The highest debate concerned the section on representation in the legislative branch. The Virginia Plan proposed that representation in the legislatives houses would be based on population of the state. Small states objected saying that it would leave them helpless in a government dominated by larger states.
After the Virginia Plan was introduced, New Jersey delegate William Paterson asked for an adjournment to contemplate the Plan. Under the Articles of Confederation, each state had equal representation in Congress, exercising one vote each. The Virginia Plan threatened to limit the smaller states’ power by making both houses of the legislature proportionate to population. On June 14-15, 1787, a small-state caucus met to create a response to the Virginia Plan. The result was the New Jersey Plan, to represent the interests of the small states.
Under the New Jersey Plan, the existing Continental Congress would remain (equal representation of states in Congress), but it would be granted new powers, such as the power to levy taxes and force their collection. An executive branch was created (multi-person executive), which would be elected by Congress. Executives would serve a single term and would be subject to recall on the request of state governors. The plan also created a judiciary that would serve for life, to be appointed by the executives. Lastly, any laws set by Congress would take precedence over state laws. When Paterson reported the plan to the convention on June 15, 1787, it was ultimately rejected, but through its proposal, the smaller states were at least able to make their issues and concerns known.
Alexander Hamilton proposed his own plan. It was known as the British Plan, because it so strongly resembled to the British system of a strong centralized government and a leader, called a “Governor,” who would be elected by electors (chosen by the people) to serve a life-term. This “Governor” would have an absolute veto power over bills. In his plan, Hamilton advocated eliminating state sovereignty and consolidating the states into a single nation. The plan featured a bicameral (2-chamber) legislature, with the lower house elected by the people for three years and the upper house elected by electors who would serve for life. Not only would a national legislature appoint state governors, but it would have complete veto power over any state legislation.
Hamilton presented his plan to the Convention on June 18, 1787, but it was immediately rejected because it resembled the British system too closely. The states had just found a war for its independence from that system. More importantly, it was rejected because it abolished state sovereignty.
A compromise, known as the Connecticut Compromise (forged by Roger Sherman from Connecticut), was proposed on June 11 which would blend the Virginia (large-state) and New Jersey (small-state) plans and thus combine the important elements of both. Sherman suggested a two-house national legislature, but proposed “That the proportion of suffrage in the first branch [house] should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more.” Additionally, as a precaution against having the larger states assume the financial burdens of the smaller states, revenue bills would originate only in the House, where the more populous states would have greater representation. The compromise was rejected at first, but on July 23, the representation in both houses was finally settled (with 2 Senators per state).
Another area which caused much deliberation was the issue of Slavery. It turned out to be the most controversial issue confronting the delegates. Slaves accounted for about one-fifth of the population in the American colonies. Most of them lived in the Southern colonies, where they made up 40% of the population.
There were three slavery-related issues which were very hotly debated at the Convention – (1) One was the question of whether slaves would be counted as part of the population in determining representation in Congress or merely considered property and not entitled to representation; (2) Another was the question of the slave trade and what to do with it; and (3) And the most important was whether slavery should be abolished altogether in the formation of a United States.
With respect to the first issue, a bitter debate resulted over whether or not blacks should be added equally with whites in the computation of the population Delegates from states with a large population of slaves wanted the slaves to be used to their benefit. As such, they wanted slaves to be considered persons in determining representation (to boost their representation in Congress) but as property for the purposes of apportionment of taxes in relation to the state’s population (ie, for the purposes of the government levying taxes on the states on the basis of population). Delegates from states where slavery had disappeared or almost disappeared argued that slaves should be included in taxation, but not in determining representation. Finally, delegate James Wilson (from Pennsylvania) and Roger Sherman (from Connecticut), proposed the Three-Fifths Compromise, which was designed to meet the demands of both sides. Recognizing the desire of the South for power and influence in government and wanting to provide an incentive for those states to ratify the Constitution, the three-fifths compromise allowed the government to count slaves only as partial people – each slave would count as “three fifths of all other persons” (Article I, Section 2, addressing representation in Congress and apportionment of taxes). [While the idea of counting each slave as less than a whole person may have sounded cruel, the purpose was to force the Southern states to abolish slavery…. The idea was that if they wanted greater representation in Congress, they would have to abolish slavery !) The Compromise was eventually adopted by the Convention.
Another issue at the Convention was what should be done about the slave trade. All states except two had already adopted provisions in their state constitutions to abolish slavery outright or to outlaw the importation of slaves or to phase it out. (North Carolina has already outlawed the importation of slaves). Georgia and South Carolina threatened to leave the Convention if the slave trade was banned outright. The delegates constantly worried that the Constitution they ultimately drafted would not be ratified by the individual states and so, in order that the southern states would not prevent the ratification, the issue of the slave trade was postponed. A compromise of sorts was worked out. Article I, Section 9, subpart 1 lists those “Powers which are Forbidden to the Congress” or rather “Limits on Congress” and subpart 1 was drafted to read: “There will be no prohibition of slavery before 1808.” In other words, Congress would have no power to address the issue of the importation of slaves until the year 1808 (20 years from the signing of the Constitution).
The same concerns over the regulation of the slave trade applied to the discussion of abolishing slavery outright under the new Constitution. The delegates did not want to frustrate the adoption of a binding Constitution by alienating the southern states. Their support was desperately needed. The matter of slavery caused such a conflict between the northern states and the southern states that several southern states refused to join the Union if slavery was not permitted under the Constitution. Three states initially had a problem with abolishing slavery – Georgia, South Carolina, and North Carolina. And it wasn’t that they didn’t believe that slavery was morally wrong or that it should be abolished. They were more concerned about their local economies. These states struggled with the question of how they could achieve a smooth transition from an agricultural economy based on slavery to one that would not be dependent on slavery. They really wanted time to figure out how to gradually phase out slavery so that their economies would not suffer. North Carolina eventually admitted it was willing to discuss options and would be willing to agree to the abolition of slavery, but South Carolina and Georgia were not willing to give up their slaves at that time. Article I Section 9 subpart I reflects the discussions by the delegates, including those from the South, regarding the eventual transition from slavery.
George Mason of Virginia felt so strongly that it was an abomination for slavery to remain as the states set about to create their new nation, under the principles set out in the Declaration of Independence, that he said this: “This infernal traffic originated in the avarice of British merchants. They British government constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing states alone but the whole Union. Maryland and Virginia have already prohibited the importation of slaves expressly. North Carolina had done the same in substance. Slavery discourages arts and manufacturing. The poor despise labor when they know there are slaves to do it. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As Nations cannot be rewarded or punished in the next world, they must in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities.”
In late July, a Committee of Detail (including North Carolina delegate John Rutledge, Virginia delegate Edmund Randolph, Massachusetts delegate Nathaniel Gorham, Connecticut delegate Oliver Ellsworth, and Pennsylvania delegate James Wilson) was given the task of reworking the Connecticut Compromise and the additional resolutions into a draft Constitution. The initial draft included a list of 18 enumerated powers reserved to Congress, a “Necessary and Proper” clause, and a number of prohibitions on the states. For the next two months, the draft was reworked, and in early September, it was handed over to a Committee of Style (including Pennsylvania delegate Gouverneur Morris, Virginia delegate James Madison, New York delegate Alexander Hamilton, Massachusetts delegate Rufus King, and Connecticut delegate William Johnson) to polish the language. Most of the credit for the final draft, and especially for its literary style, goes to Gouverneur Morris.
Most of the literary praise given the Constitution centered on the eloquence of the Preamble. “We the People of the United States, in Order to form a more Perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and to our Posterity, do ordain and establish this Constitution for the United States of America.”
The Preamble was added by Morris to the Constitution more or less as an afterthought. It was not debated or discussed on the floor of the Convention. As Edwin Meese II wrote: “It was Morris who gave the considered purposes of the Constitution coherent shape, and the Preamble was the capstone of his expository gift.” The Preamble, in and of itself, holds no substantive legal meaning. It was merely explanatory. Preambles, as understood at the time, were added to legal documents as statements of declaration or explanation. Nevertheless, the Preamble given to us by Morris is a powerful statement of the purposes for which the Constitution was written. “It distills the underlying values that moved the Framers during their long debates in Philadelphia. As Justice Joseph Story put it in his celebrated Commentaries on the Constitution of the United States, ‘its true office (purpose) is to expound the nature and extent and application of the powers actually conferred by the Constitution.'” wrote Meese. Alexander Hamilton felt the phrase “to secure the Blessings of Posterity to ourselves and to our Posterity” is one of the most powerful phrases regarding individual liberty in any national document.
Not all delegates were happy with the final product. 3 high profile delegates refused to sign it: George Mason (Virginia), Edmund Randolph (Virginia), and Elbridge Gerry (Massachusetts). Mason and Gerry were particularly concerned about the lack of a Bill of Rights – a list of those fundamental liberties and procedural rights that the government would be required to protect and therefore not limit. They understood that a Bill of Rights would put restrictions on the federal government. (Mason and Gerry would later support the Constitution when assurances were given that the states would be able to add a Bill of Rights at the time of adoption). Randolph felt the Constitution created a government that was not sufficiently republican in nature.
Despite the lack of a Bill of Rights, which he felt strongly in favor of, Thomas Jefferson nonetheless wrote that the Constitution “is unquestionably the wisest ever yet presented to men.”
Edwin Meese III, Matthew Spalding, and David Forte, (2005). The Heritage Guide to the Constitution, The Heritage Foundation.