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CHAPTER VIII: CREATING THE CONSTITUTION

The Annapolis Convention

By mid-1786, the nation’s leaders recognized that coordinating the states’ commercial interests was essential to protecting the young country’s freedom and stability. The core of the rebellion then taking place in Massachusetts was economic, and American trade, which had long been depressed, was reaching new lows that year. A group of Virginia leaders meeting at George Washington’s home at Mount Vernon called for a meeting of the states to be held in Annapolis, Maryland, to discuss the economic situation and propose modest economic changes to the Articles of Confederation government.

Unhappily for the organizers, only five states sent delegations to the September meeting; indeed, not even the host state was represented. Given the sparse attendance, those present determined that it made no sense to seek any changes in the form of government, but they remained concerned about the nation’s economic, diplomatic and military problems. The delegates thus endorsed a plan by New York’s Alexander Hamilton calling for another meeting, this one to deal with full-scale reform of the governmental system created by the increasingly ineffective Articles of Confederation. The small group assembled at Annapolis then petitioned Congress to sanction such a meeting, which did so without great enthusiasm. On February 21, 1787, Congress adopted a resolution that appealed to all states to send representatives to Philadelphia for a convention that spring.

The Philadelphia Convention

The Constitutional Convention commenced on May 25, 1787 in Philadelphia, with representatives from all states except the ever-stubborn and isolated Rhode Island. From the beginning, there was widespread recognition that the Articles of Confederation was inadequate to its task, but there was far less agreement on how it could be altered. Nationalistic leaders such as James Madison and Alexander Hamilton saw the Philadelphia convention as an opportunity to overhaul the document. However, other delegates seemed interested only in making minor revisions; in fact, many delegates had been specifically instructed by their states to accept only minor changes to the Articles, not scrap it altogether. In issuing the call for the convention, Congress had provided little guidance, merely urging the states to attend a gathering that was “the most probable means of establishing in these states a firm national government.” The Congressional invitation noted that the meeting was for the “sole and express purpose of revising” the Articles, but that the convention was to report to Congress and the state legislatures “such alteration and provisions … as shall render the federal constitution adequate to the exigencies of the government and the preservation of the Union.”

The assemblage in Philadelphia included most of the nation’s best and brightest and very few men who could be considered ordinary Americans. Indeed, as historian James McGregor Burns famously noted, “This was a convention of the well-bred, the well-fed, the well-read, and the well-wed.” However, there were a few notable absentees, including the aging Samuel Adams, who declined to attend, and the ever-independent Patrick Henry, who claimed to have “smelled a rat” and opted to stay home and focus on more local allegiances. Absent too were John Adams and Thomas Jefferson, serving as ambassadors to Great Britain and France respectively, although their views were adequately represented by political soulmates Gourverneur Morris and James Madison. The nation’s greatest hero, George Washington, did attend, and the delegates quickly elected him president of the convention. The undertaking gained immediate stature because no American was more widely revered than Washington was. Although he was certainly not a political philosopher on the order of Jefferson or Franklin nor an orator such as Henry, Washington possessed innate leadership skills, had expressed his steadfast dedication to the revolutionary effort, and had sacrificed much for the union up to that point.

The guiding, but given the tremendous intellectual talent in attendance, by no means dominant force at the convention was James Madison. Embodying two fundamental truths, “knowledge is power” and “forewarned is forearmed,” the gentleman from Virginia came armed with not only prodigious knowledge about the workings of government but also a plan that was quickly presented to the convention by the leader of the Virginia delegation, Governor Edmund Randolph. The “Virginia Plan,” as it became known, served as the centerpiece of the subsequent debates that summer. Much to Madison’s dismay, his plan was immediately attacked from both sides. Some believed that the changes proposed did not make the new government strong enough to provide economic and military security. Others felt that the Virginia Plan was too sweeping in its changes and that it did not serve the best interests of their individual states or protect citizens’ natural rights.

The Crisis over Representation

Despite these attacks, the basic structure of the Virginia Plan survived to form the core of the resulting Constitution. It laid out a national government made up of three branches—executive, legislative, and judicial. The legislative was to be bicameral with the lower house elected by popular vote. These basic provisions were adopted without incident, but determining to how much representation each state would have in Congress would prove more problematic. The Virginia Plan called for population to be the sole factor in determining the number of representatives in Congress, thereby creating a system of “proportional representation” in which each state was represented according to its proportion of the total population. This plan naturally pleased the large states but alarmed the small states. The smaller states balked at this plan and offered their own version, known as the New Jersey Plan, which called for “equal representation,” that is, an equal number of representatives in Congress for each state. Although it was soundly rejected, it reflected the concerns of many about the possible domination by the larger states of the government and the nation. For nearly two months, the convention appeared to be deadlocked, and some feared that the convention would have to be dissolved.

Stuck in Philadelphia in the midst of a hot summer, unable even to open a window in the meeting room for fear that their deliberations would leak out in advance of the final decisions, the Founding Fathers struggled with both the details and the broad concepts of their master plan. Finally, prodded by Connecticut’s Roger Sherman, the delegates approved what came to be known as the Connecticut Compromise, or the Great Compromise. Under Sherman’s proposal, the large states would be given greater representation in the lower house, the House of Representatives, where membership would be based on population. The other chamber, the Senate, would have equal representation for all states, with each getting two seats. Revenue bills would have to originate in the people’s house, the House of Representatives, to ensure that the popular will was being followed.

Delegation of Powers

Although solving the riddle of proper representation was a major hurdle, it was only one of many that had to be surmounted. The question of how to divide power between the states and the national government remained unresolved. Despite the ineffectual nature of the central government under the Articles of Confederation, many delegates viewed any effort to shift authority to the national level with intense suspicion. At the same time, the staunch nationalists feared the impact of leaving any substantive power in the hands of the states. Here too, the delegates reached a compromise. Leaving the election of both the senators and the presidential electors to the states established a reasonable balance with the popularly elected House of Representatives. Moreover, the qualifications of state officials, the oversight of personal matters such as marriage and divorce, the establishment and maintenance of schools, and the regulation of commerce within individual states were left to the states themselves. The national government and the states would share the power to tax and to borrow money, which ensured that Congress would be able to oversee the national economy and states could look after their own commercial interests.

The delegates reserved many powers for the states, but it claimed some powers for the central government that were essential to protecting the country. Congress was granted the exclusive power to declare war, regulate immigration and naturalization, coin money, establish a lower court system, and regulate interstate commerce. In addition, the national legislature was given the authority to pass any laws considered “necessary and proper” to the proper running of the country. This controversial last provision was often called the “elastic clause” because it gave Congress the ability to expand its authority, as the needs of the country dictated. Furthermore, the experience of Shays’ Rebellion had convinced delegates to place limits on the states’ ability to act in certain economic areas. By prohibiting the states from imposing customs duties, issuing paper money or enacting legislation that might interfere with contractual obligations, they provided greater protection for property-owners.

The Executive and Judicial Branches

Given their experience with King George III, the question of a single executive caused the assembly in Philadelphia no small amount of consternation. Many argued that executive power should be divided between three or more men to prevent any one person from abusing his authority. However, the general assumption that George Washington would be the first man to hold the office helped assuage fears of a tyrannical single executive, at least in the short term. In the end, the delegates agreed that there should be one executive, called a President, but that he should have severe limitations placed on his authority. The President’s major appointments had to be approved by the Senate, his executive vetoes could be overridden, and he could be impeached and removed from office if he tried to exercise too much power. Indeed, the delegates made it clear that Congress and not the President would be the preeminent force in the new government.

Considering the fact that the Articles of Confederation had not provided for a functioning or powerful judicial branch, the creation of a judiciary in the Constitution could be seen as visionary or even revolutionary. In fact, the delegates derived most of their inspiration for the judicial branch from the traditions and institutions established in British common law. By and large, existing state courts would be left to deal with the majority of court cases. However, a Supreme Court was established to serve as the final authority in conflicts such as those between two states or those regarding constitutional issues. Congress was also given the power to establish lower national courts if necessary, which it did almost immediately after convening for the first time. Although the Supreme Court would come to, in the words of Chief Justice John Marshall, “say what the law is,” its power was just as limited as the President’s. Justices could be impeached and removed from office, and their rulings could be overturned by a constitutional amendment.

Other Issues Facing the Convention

Despite the ineffectual nature of the Articles, those in attendance in Philadelphia were clearly mindful of the potential for abuse that was inherent in unbounded concentrations of power. They were guided by two basic principles: separation of power and checks and balances. Authority at the national level was separated into the three branches, each with a means of limiting the power and influence of the other two branches. For example, the President was given the power to negotiate treaties and appoint judges, but Congress could choose reject the treaties or deny the judicial appointments. Congress could pass any bill it deemed “necessary and proper,” but the President could veto the bill and the Supreme Court could, theoretically, rule on its constitutionality. Some argued that this structure would make taking any action almost impossible, but others maintained that these safeguards simply made ill-considered action unlikely.

Slavery topped the list of controversial issues facing the delegates in Philadelphia. Opponents of slavery saw the Constitutional Convention as the perfect opportunity to live up to the sweeping proclamation in the Declaration of Independence that “all men are created equal.” However, the pro-slavery delegates insisted that any attempt to abolish slavery would result in the departure from the convention—and the union—of those southern states in which slavery was essential to the economy. They argued that any limitation on slavery would infringe on slave owners’ property rights, a view that nearly split apart the convention as the issues of representation and taxation were discussed.

Delegates from states in which slavery was prohibited wanted representation in Congress to be based on a number that did not include the slave population, thereby increasing the representation of the free states. However, they wanted to count the slaves when it came to determining how much taxes each state should pay, which would place a greater tax burden on slave states. Not surprisingly, delegates from slaveholding states wanted just the opposite: slaves should be counted as people when determining representation, but not when levying taxes. After a long and contentious series of debates, the delegates resolved this dispute by passing the Three-Fifths Compromise, which established that slaves would be counted as three-fifths of a person for both representation and taxation purposes. Delegates from slave-owning states also fended off attempts to abolish the slave trade, gaining a twenty-year reprieve before Congress was given the discretion to end that practice. In the end, the issue over slavery proved too large and divisive to be settled by the Constitutional Convention; indeed, the word “slave” does not even appear in the original text of the Constitution. Rather, the delegates were content to leave it to the states and to later generations to settle the question once and for all.

The document signed on September 17, 1787 was not perfect. Rather, it as the product of many compromise and carried the weaknesses inherent in such solutions. Indeed, three of the delegates—Elbridge Gerry of Massachusetts and George Mason and Edmund Randolph of Virginia—refused to sign the final document, fearing that it did not provide sufficient protection for the natural individual rights of the nation’s citizens. One final step remained before the Constitution could be implemented. It had to be ratified by the people. A skeptical public, kept in the dark since the convention had first met in May, had to be convinced that this document was a risk worth taking. As the delegates dispersed and headed home, ready to make their cases to their fellow statesmen, there was no guarantee that their fellow citizens would be convinced.

The Fight for Ratification

The debate over ratifying the United States Constitution was both practical and philosophical. Those for and against ratification argued forcefully in newspapers and in ratifying conventions, often quoting the words of Enlightenment philosophers to help their cause. Invariably, those in favor of ratification, who would come to be called Federalists, cited Thomas Hobbes in stressing the need for a strong central government. Hobbes claimed that humans were not good by nature, and, left to their own devices, they fail to act virtuously, falling into petty rivalries and selfishness. To the Federalists, the years of the Articles of Confederation government had proven this to be true; states had all the power and prestige yet refused to work together for the common good. Therefore, the new government had to be strong enough to protect the people and keep wayward states and citizens in line.

Those who opposed the United States Constitution would come to be called Anti-Federalists. To make the argument against the Constitution, Anti-Federalist leaders cited the philosophies of John Locke, the man who had inspired Jefferson to write the Declaration of Independence. To Locke, humans were good by nature, and government was necessary only as a means of protecting the natural rights of its citizens. The Anti-Federalists claimed that the Constitution granted too much power to the national government and diminished the importance of the individual states. An unchecked, overly powerful government could abuse the natural rights of citizens just as easily as the British had. Furthermore, Anti-Federalists objected not only to the provisions of the Constitution but also to the way in which the delegates had discarded the Articles of Confederation and surreptitiously replaced it with an entirely new document.

Clearly the Federalists had to campaign vigorously to win ratification by the nine states necessary to make the Constitution operative, but it was not a pitched battle in all locales. Some of the smaller states, satisfied with the equal representation they received in the Senate, jumped on board quickly. Tiny Delaware was the first to ratify, less than three months after the delegates in Philadelphia had finished their work. Pennsylvania, home to the convention, followed suit only days later, although Anti-Federalists accused the Federalists of using physical force and mob violence to sway the vote. In the end, however, Pennsylvania’s ratification vote served as a final tribute to its favorite son and the Constitutional Convention’s oldest delegate, Benjamin Franklin. In many ways, the Constitution represented the culmination of Franklin’s long-held dream of genuine American unity.

By the first days of 1788, conventions in New Jersey, Georgia, and Connecticut the Constitution, thus securing over half of the necessary nine votes. The debate over ratification was more heated in Massachusetts, where the residue of the revolution led many to significant distrust the sweeping national powers granted in the Constitution. To many, the proposed new system seemed to create great concentrations of power while appearing unmindful of individual liberties. Men such as Samuel Adams who had been so critical to the overthrow of the tyrannical British government had no interest in replacing the old royal tyranny with a new constitutional version. Fortunately for the advocates of the Constitution, the strongest potential opposition leaders, Adams and Gerry, opted to hold their fire. Although he stated his objections, Adams recognized that his home constituency of Boston favored the new plan, and he limited his activism. Gerry had refused to sign the document back in Philadelphia, but he had also played a significant role in drafting it and was not willing to lead an assault on his handiwork, however imperfect the final draft was. This lack of opposition leadership enabled the Federalists to gain momentum in their push for ratification.

The Federalists’ prospects improved markedly when John Hancock, whose attendance at the ratifying convention had been limited due to illness, recovered enough to lend his support to the Federalists. Although Hancock’s decision was probably influenced by the Federalists’ suggestion that they would support him for Vice President—or even President, should Washington’s Virginia fail to ratify—it proved pivotal. He was a wealthy and powerful man who had signed the Declaration of Independence, served as president of Congress, and earned renown more for his practical approach to politics than his ideological loyalties. With Hancock’s support, the Federalists were able to secure ratification, although Massachusetts became the first state to call for the adoption of amendments. Still, it was enough to turn the tide. Soon after, Maryland and South Carolina ratified the Constitution, and New Hampshire became the ninth state to join the union on June 21,1788.

With the necessary nine votes, the Constitution took effect in those states. However, the Federalists recognized that without its two largest states, Virginia and New York, the new nation would be little more than a shell of what they had envisioned when they had declared their independence over a decade before. In terms of economic and human resources, these two states were critical to any national venture. Even then, it was hard to imagine a United States whose population did not include the likes of Washington, Jefferson, Madison, or Hamilton. Consequently, efforts were redoubled to persuade them to join. Virginia proved to be the easier challenge. The dynamic Patrick Henry had opposed ratification from the outset, but his talents and efforts were more oratorical than organizational. The Federalist forces led by James Madison, and ably complemented by the next generation of leaders, including the young lawyer and Revolutionary War veteran John Marshall, organized a campaign that narrowly secured ratification as the tenth state on June 25, 1788. Despite his defeat, Patrick Henry’s efforts did much to draw attention to the omission in the Constitution of a bill of rights. Other states had also called for the inclusion of a bill of rights as a series of amendments to the existing document, but few states or speakers had the influence of Patrick Henry. His warnings and protestations virtually assured the creation and adoption of the Bill of Rights in 1791.

New York remained the last crucial state outside the Constitutional framework. Alexander Hamilton, however, was not going to allow himself or his state to be left out of this new nation. This tremendously ambitious man had worked too hard to secure a constitution that was sufficiently energetic to help the nation achieve the greatness that he envisioned. Joining with one of New York’s most respected statesmen, John Jay, Hamilton devised a plan to write articles which were to be printed in newspapers statewide in order to convince the people of New York of the benefits of ratification. Jay became ill early in the process, so Hamilton quickly enlisted the assistance of James Madison, and they completed the extensive series of eighty-five articles outlining the benefits of and need for the new Constitution. These articles, now referred to as the Federalist Papers, helped turn the tide of public opinion in New York toward ratification. After New York agreed to join the new Constitutional system, North Carolina, which had originally voted to reject the new Constitution, reconsidered and ratified. Finally, nearly three years after Delaware led the way, and over a year into the first term of President George Washington, Rhode Island voted to ratify the Constitution. The idea of national unity, first proposed by Benjamin Franklin back in 1754 was, by 1790, at last a reality.

The Federalists had maintained that no bill of rights would be necessary to protect the natural rights of American citizens under the new Constitution. However, they realized that, in the interest of national unity, they could stand to articulate those rights that would be forever protected. Written as a series of proposals by none other than James Madison himself, the Bill of Rights would be ratified by the states and thus become first ten amendments added to the Constitution. These amendments, addressing the natural rights of religion, speech, assembly, property, self-preservation and protection, and the rights of the accused, would come to stand as bulwarks against those who had designs of an oppressive government, and would become, in many ways, as vital to the success of the American system of government, as the original seven articles.

Chapter VIII Vocabulary Terms

Annapolis Convention

Philadelphia Convention

James Madison

Alexander Hamilton

Virginia Plan

New Jersey Plan

Connecticut Compromise

Proportional Representation

Equal Representation

Three-Fifths Compromise

Executive Branch

Judicial Branch

Separation of Powers

Checks and Balances

Ratification

The Federalist Papers

Bill of Rights

Chapter VIII Review Questions

1. How did the Constitution attempt to correct the inadequacies of the Articles of Confederation government? How does the Constitution differ from the Articles in terms of distribution of power?

2. In what ways did the Constitution respond to the abuses suffered by the colonists in the years leading up to the American Revolution?

3. Identify and discuss the significance of the following men in terms of the creation of the Constitution: George Washington, Roger Sherman, Patrick Henry, John Hancock, Elbridge Gerry, George Mason, and Edmund Randolph.

4. To what extent was the issue of slavery addressed at the convention? What were the long-term social and legal consequences of the Three-Fifths Compromise?

5. What were some of the major complaints about the Constitution offered by the Anti-Federalists? Specifically, what was the most significant omission?

6. Trace the ratification process. Why was so much time and energy spent writing the Federalist Papers after the ninth state had already ratified the Constitution?

 

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