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Constitutional Convention (United States)

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The Constitutional Convention[1] (also known as the Philadelphia Convention[1] the Federal Convention,[1] or the Grand Convention at Philadelphia)[2][3] took place from May 25 to September 17, 1787, in the old Pennsylvania State House (later known as Independence Hall because of the adoption of the Declaration of Independence there eleven years before) in Philadelphia. Although the Convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention from the outset of many of its proponents, chief among them James Madison of Virginia and Alexander Hamilton of New York, was to create a new government rather than fix the existing one. The delegates elected George Washington of Virginia, former commanding general of the Continental Army in the late American Revolutionary War (1775–1783) and proponent of a stronger national government, to become President of the Convention. The result of the Convention was the creation of the Constitution of the United States, placing the Convention among the most significant events in American history.

At the time, the convention was not referred to as a "Constitutional" convention, nor did most of the delegates arrive intending to draft a new constitution. Many assumed that the purpose of the convention was to discuss and draft improvements to the existing Articles of Confederation, and would have not agreed to participate otherwise. Once the Convention began, however, most of the delegates – though not all – came to agree in general terms that the goal would be a new system of government, not simply a revised version of the Articles of Confederation.

Several broad outlines were proposed and debated, most notably James Madison's Virginia Plan and William Paterson's New Jersey Plan. The Virginia Plan was selected as the basis for the new government. While the concept of a federal government with three branches (legislative, executive, and judicial) and the general role of each branch was not heavily disputed, several issues delayed further progress and put the success of the Convention in doubt. The most contentious disputes revolved around the composition and election of the Senate as the upper legislative house of a bicameral Congress; whether "proportional representation" was to be defined by a state's geography or by its population, and whether slaves were to be counted; whether to divide the executive power among three people or vest the power in a single chief executive to be called the President; how a president would be elected, for what term, and whether to limit each president to a single term in office; what offenses should be impeachable; the nature of a fugitive slave clause, and whether to allow the abolition of the slave trade; and whether judges should be chosen by the legislature or the executive. Most of the time during the Convention was spent on deciding these issues.

Progress was slow until mid-July, when the Connecticut Compromise resolved enough lingering arguments for a draft written by the Committee of Detail to gain acceptance. Though more modifications and compromises were made over the following weeks, most of the rough draft remained in place and can be found in the finished version of the Constitution. After several more issues were resolved, the Committee on Style produced the final version in early September. It was voted on by the delegates, inscribed on parchment with engraving for printing, and signed by thirty-nine of fifty-five delegates on September 17, 1787. The completed proposed Constitution was then released to the public to begin the debate and ratification process.

Historical context[edit]

During the American Revolution, the thirteen American states replaced their colonial governments with republican constitutions based on the principle of separation of powers, organizing government into legislative, executive and judicial branches. At the same time, these revolutionary constitutions endorsed legislative supremacy by placing most power in the legislature—since it was viewed as most representative of the people—including power traditionally considered as belonging to the executive and judicial branches. State governors lacked significant authority, and state courts and judges were under the control of the legislative branch.[4]

After declaring independence from Britain in 1776, the thirteen states created a permanent alliance to coordinate American efforts to win the Revolutionary War. This alliance, the United States, was to be governed according to the Articles of Confederation, which was more of a treaty between independent countries than a national constitution.[5] The Articles were adopted by the Second Continental Congress in 1777 but not finally ratified by all states until 1781.[6] During the Confederation Period, the United States was essentially a federation of independent republics, with the Articles guaranteeing state sovereignty and independence. The Confederation was governed by the Congress of the Confederation, a unicameral legislature whose members were chosen by the state legislatures and in which each state cast a single vote.[7] Congress was given a limited set of powers, mainly in the area of waging war and foreign affairs. It could not levy taxes or tariffs, and it could only request money from the states, with no power to force delinquent states to pay.[8] Since the Articles could only be amended by unanimous vote of the states, any state had effective veto power over any proposed change.[9] A super majority (nine of thirteen state delegations) was required for Congress to pass major legislation such as declaring war, making treaties, or borrowing money.[10] The Confederation had no executive or judicial branches, which meant the Confederation government lacked effective means to enforce its own laws and treaties against state non-compliance.[11] It soon became evident to nearly all that the Confederation government, as originally organized, was inadequate for managing the various problems confronting the United States.[9]

Once the immediate task of winning the war had passed, states began to look to their own interests rather than those of the whole country. By the mid-1780s, states were refusing to provide Congress with funding, which meant the Confederation government could not pay the interest on its foreign debt, pay soldiers stationed along the Ohio River or defend American navigation rights on the Mississippi River against Spanish interference.[12] In 1782, Rhode Island vetoed an amendment that would have allowed Congress to levy taxes on imports in order to pay off federal debts. A second attempt was made to approve a federal impost in 1785; however, this time it was New York which disapproved.[13]

The Confederation Congress also lacked the power to regulate foreign and interstate commerce. Britain, France and Spain imposed various restrictions on American ships and products, while the US was unable to coordinate retaliatory trade policies. When states like Massachusetts or Pennsylvania placed reciprocal duties on British trade, neighboring states such as Connecticut and Delaware established free ports to gain an economic advantage. In the 1780s, some states even began applying customs duties against the trade of neighboring states.[14] In 1784, Congress proposed an amendment to give it powers over foreign trade; however, it failed to receive unanimous approval by the states.[15]

Many upper class Americans complained that state constitutions were too democratic and, as a result, legislators were more concerned with maintaining popular approval than doing what was best for the nation. The most pressing example was the way state legislatures responded to calls for economic relief in the 1780s. Many people were unable to pay taxes and debts due to a post-war economic depression that was exacerbated by a scarcity of gold and silver specie. States responded by issuing paper currency, which had a tendency to depreciate in value, and by making it easier to defer tax and debt payments. These policies favored debtors at the expense of creditors, and it was proposed that Congress be given power to prevent such populist laws.[16]

When the government of Massachusetts refused to enact similar relief legislation, rural farmers resorted to violence in Shays' Rebellion (1786–1787). This rebellion was led by a former Revolutionary War captain, Daniel Shays, a small farmer with tax debts, who had never received payment for his service in the Continental Army. The rebellion took months for Massachusetts to put down completely, and some desired a federal army that would be able to put down such insurrections.[17]

These and other issues greatly worried many of the Founders that the Union as it existed up to that point was in danger of breaking apart.[18][19] In September 1786, delegates from five states met at the Annapolis Convention and invited all states to a larger convention to be held in Philadelphia in 1787. The Confederation Congress later endorsed this convention "for the sole and express purpose of revising the Articles of Confederation".[20] Rhode Island was the only state that refused to send delegates, though it would become the last state to ratify the Constitution in May 1790.[21]

Operations and procedures[edit]

Independence Hall's Assembly Room

Originally planned to begin on May 14, the Convention had to be postponed when very few of the selected delegates were present on that day due to the difficulty of travel in the late 18th century. James Madison of Virginia arrived eleven days early, and on May 14 only delegates from Virginia and Pennsylvania were present.[22] It was not until May 25 that a quorum of seven states was secured and the Convention could begin inside the Pennsylvania State House.[22] New Hampshire delegates would not join the Convention until more than halfway through the proceedings, on July 23.[23]

The first thing the Convention did was choose a presiding officer, unanimously electing George Washington president of the Convention.[24][page needed] Washington's participation in the Convention was crucial to lending its proceedings a sense of legitimacy.[citation needed] The Convention then adopted rules to govern its proceedings. The rule

s gave each state delegation a single vote either for or against a proposal in accordance with the majority opinion of the state's delegates.[25] This rule increased the power of the smaller states.[26]

When a state's delegates divided evenly on a motion, the state did not cast a vote. Throughout the Convention, delegates would regularly come and go, with only 30–40 being present on a typical day, and each state had its own quorum requirements. Maryland and Connecticut allowed a single delegate to cast its vote. New York required all three of its delegates to be present. If too few of a state's delegates were in attendance, the state did not cast a vote. After two of New York's three delegates abandoned the Convention in mid July with no intention of returning, New York was left unable to vote on any further proposals at the Convention, although Alexander Hamilton would continue to periodically attend and occasionally to speak during the debates.[25][27]

The rules allowed delegates to demand reconsideration of any decision previously voted on. This allowed the delegates to take straw votes in order measure the strength of controversial proposals and to change their minds as they worked for consensus.[28]

It was also agreed that the discussions and votes would be kept secret until the conclusion of the meeting.[29] Despite the sweltering summer heat, the windows of the meeting hall were nailed shut to keep the proceedings a secret from the public.[30] Although William Jackson was elected as secretary, his records were brief and included very little detail. Madison's Notes of Debates in the Federal Convention of 1787, supplemented by the notes of Robert Yates, remain the most complete record of the Convention.[31] Due to the pledge to secrecy, Madison's account was not published until after his death in 1836.[32]

Outside the Convention in Philadelphia, there was a national convening of the Society of the Cincinnati. Washington was said to be embarrassed. The 1776 "old republican" delegates like Elbridge Gerry (MA) found anything military or hereditary anathema. The Presbyterian Synod of Philadelphia and New York convention was meeting to redefine its Confession, dropping the faith requirement for civil authority to prohibit false worship.[33] Protestant Episcopalian Washington attended a Roman Catholic Mass and dinner.[34] Revolution veteran Jonas Phillips, of the Mikveh Israel Synagogue, petitioned the Convention to avoid a national oath including belief in both Old and New Testaments. Merchants of Providence, Rhode Island, petitioned for consideration, though their Assembly had not sent a delegation.[35]

Manasseh Cutler came directly from the capital in New York and found himself a frequent dinner guest among the delegates. He carried grants of five million acres to parcel out among The Ohio Company and "speculators", including some who were attending the Convention.[a] A Philadelphia guest of Robert Morris, Noah Webster would write a pamphlet immediately after the signing. "Leading Principles of the Federal Convention" advocated adoption of the Constitution. It was published much earlier and more widely circulated than today's better known Federalist Papers.[37]

Madison's blueprint[edit]

James Madison, the author of the Virginia Plan

James Madison arrived in Philadelphia early and determined to set the Convention's agenda.[38] Prior to the Convention, Madison studied republics and confederacies throughout history, such as ancient Greece and contemporary Switzerland.[39] In April 1787, he drafted a document entitled "Vices of the Political System of the United States", which systematically evaluated the American political system and offered solutions for its weaknesses.[40] Due to his advance preparation, Madison's blueprint for constitutional revision became the starting point for the Convention's deliberations.[41]

Madison believed the solution to America's problems was to be found in a strong central government.[39] Madison believed Congress needed compulsory taxation authority as well as power to regulate foreign and interstate commerce.[38] To prevent state interference with the federal government's authority, Madison believed there needed to be a way to enforce the federal supremacy, such as an explicit right of Congress to use force against non-compliant states and the creation of a federal court system. Madison also believed the method of representation in Congress had to change. Since under Madison's plan, Congress would exercise authority over citizens directly—not simply through the states—representation ought to be apportioned by population, with larger states having more votes in Congress.[42]

Madison was also concerned with preventing a tyranny of the majority. The government needed to be neutral between the various factions or interest groups that divided society—creditors and debtors, rich and poor, or farmers, merchants and manufacturers. Madison believed that a single faction could more easily control the government within a state but would have a more difficult time dominating a national government comprising many different interest groups. The government could be designed in such a way to further insulate officeholders from the pressures of a majority faction. To protect both national authority and minority rights, Madison believed Congress should be granted veto power over state laws.[43]

Early debates[edit]

While waiting for the Convention to formally begin, Madison sketched out his initial proposal, which became known as the Virginia Plan and reflected his views as a strong nationalist. The Virginia and Pennsylvania delegates agreed with Madison's plan and formed what came to be the predominant coalition within the Convention.[44] On May 29, Edmund Randolph, the governor of Virginia, presented the Virginia Plan to the Convention.[45] It called for a supreme national government and was a radical departure from the Articles of Confederation.[46] The same day, Charles Pinckney of South Carolina introduced his own plan that also greatly increased the power of the national government; however, the supporters of the Virginia Plan ensured that it, rather than Pinckney's plan, received the most consideration.[47]

On May 30, the Convention agreed, at the request of Gouverneur Morris, "that a national government ought to be established consisting of a supreme Legislative, Executive and Judiciary".[48] This was the Convention's first move towards going beyond its mandate merely to amend the Articles of Confederation and instead produce an entirely new government. However, the nationalists had not secured victory. There were only eight states present on May 30, and the five absent states were small and likely to oppose attempts to create a strong national government dominated by the larger states.[49] Once it had agreed to the idea of a supreme national government, the Convention began debating specific parts of the Virginia Plan.

Congress[edit]

All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government. Can a democratic assembly, who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy. Their turbulent and uncontroling disposition requires checks.

—Alexander Hamilton, quoted in Notes of the Secret Debates of the Federal Convention of 1787 by Robert Yates

The Virginia Plan called for the unicameral Confederation Congress to be replaced with a bicameral Congress. This would be a truly national legislature with power to make laws "in all cases to which the separate states are incompetent".[50] It would also be able to veto state laws. Representation in both houses of Congress would be apportioned according either to a state's wealth or the size of each state's non-slave population. The lower house of Congress would be directly elected by the people, while the upper house would be elected by the lower house from candidates nominated by state legislatures.[51]

The first area of major dispute was the manner by which both houses of Congress would be apportioned. On May 30, Delaware's delegation threatened to leave the Convention if proportional representation replaced equal representation and debate on this issue was postponed.[52] Though there was discussion on how to calculate property for this purpose, the issue of property was later dropped because of its difficulty, and an assumption that property would closely correlate to population.[53]

Most accepted the desire among the slave states to count slaves as part of the population, although their servile status was raised as a major objection against this. The Three-Fifths Compromise assessing population by adding the number of free persons to three-fifths of "all other persons" (slaves) was agreed to without serious dispute.[54] In 1783, when attempting to assess a national taxation system, the Confederation Congress had considered a three fifths ratio, which did not achieve unanimity.[54][55] This compromise resulted in a large coalition of states, including the small slave states of South Carolina and Georgia, backing the Virginia plan and thus expanding the power of the primary coalition.[54]

In England, at this day, if elections were open to all classes of people, the property of landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The Senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability.

—James Madison, quoted in Notes of the Secret Debates of the Federal Convention of 1787 by Robert Yates

The division of the legislature into an upper and lower house was familiar and had wide support. The British Parliament had an elected House of Commons and a hereditary House of Lords. All the states had bicameral legislatures except for Pennsylvania.[56] There was some opposition to popular election of the lower house. Elbridge Gerry of Massachusetts and Roger Sherman of Connecticut feared the people were too easily misled by demagogues and that popular election could lead to mob rule and anarchy. Pierce Butler of South Carolina believed that only wealthy men of property could be trusted with political power. The majority of the Convention, however, supported popular election.[57] George Mason of Virginia said the lower house was "to be the grand depository of the democratic principle of the government."[58]

There was general agreement that the upper house or Senate should be smaller and more selective than the lower house. It's members should be gentlemen drawn from the most intelligent and virtuous among the citizenry.[59] Experience had convinced the delegates that such an upper house was necessary to tame the excesses of the democratically elected lower house.[56] The Virginia Plan's method of selecting the Senate was more controversial. Members concerned with preserving state power wanted state legislatures to select senators, while James Wilson of Pennsylvania proposed direct election by the people.[54] The new Constitution was seen as such a radical break with the old system, by which delegates were elected to the Confederation Congress by state legislatures, that the Convention agreed to retain this method of electing senators to make the constitutional change less radical.[59]

On May 31, the Convention quickly agreed that each house of Congress should be able to originate bills. It also agreed that the new Congress would have all the legislative powers of the Confederation Congress and veto power over state laws.[60]

The more difficult problem was the issue of apportionment. During the deliberations, the New Jersey Plan was introduced, although it was more of a protest to the excessive national character of the Virginia plan, and was not seriously considered.[61] The Connecticut delegation offered a compromise, whereby the number of representatives for each state in the lower house would be apportioned based on the relative size of the state's population, while the number of representatives in the upper house would be the same for all of the states, irrespective of size. The large states, fearing a diminution of their influence in the legislature under this plan, opposed this proposal. Unable to reach agreement, the delegates decided to leave this issue for further consideration later during the meeting.

Executive branch[edit]

Front side of the Virginia Plan

As English law had typically recognized government as having two separate functions—law making embodied in the legislature and law executing embodied in the king and his courts—the division of the legislature from the executive and judiciary was a natural and uncontested point.[62][page needed] Even so, the form the executive should take, its powers and its selection would be sources of constant dispute through the summer of 1789.[63]

As a result of their colonial experience, Americans distrusted a strong chief executive.The revolutionary state constitutions made the governors subordinate to the legislatures, denying them executive veto power over legislation. Without veto power, governors were unable to block legislation that threatened minority rights. Under the Articles of Confederation, the closest thing to an executive was the Committee of the States, which was empowered to transact government business while Congress was in recess. However, this body was largely inactive.[64]

The Virginia Plan proposed a national executive chosen by Congress. It would have power to execute national laws and be vested with the power to make war and treaties.[65] Whether the executive would be a single person or a group of people was not defined.[66] The executive together with a "convenient number" of federal judges would form a Council of Revision with the power to veto any act of Congress. This veto could be overridden by an unspecified number of votes in both houses of Congress.[65]

James Wilson of Pennsylvania feared that the Virginia Plan made the executive too dependent on Congress. He argued that there should be a single, unitary executive that was elected directly by the people. Only through direct election could the executive be both independent of Congress and a representative of the whole nation.[67] Wilson used his understanding of civic virtue as defined by the Scottish Enlightenment, to help design the presidency. The challenge was to design a properly constituted executive that was fit for a republic and based on civic virtue by the general citizenry. He spoke 56 times, calling for a chief executive who would be energetic, independent, and accountable. He believed that the moderate level of class conflict in American society produced a level of sociability and inter-class friendships that could make the presidency the symbolic leader of the entire American people. Wilson did not consider the possibility of bitterly polarized political parties. He saw popular sovereignty as the cement that held America together linking the interests of the people and of the presidential administration. The president should be a man of the people who embodied the national responsibility for the public good and provided transparency ro accountability by being a highly visible national leader, as opposed to numerous largely anonymous congressmen.[68][69][70]

On June 1, Wilson proposed that "the Executive consist of a single person." This motion was seconded by Pinckney, whose plan called for a single executive and specifically named this official a "president".[71] Wilson's motion for a single executive passed on June 4 despite some opposition. A minority led by Randolph and George Mason of Virginia feared that a single executive would become a tyrannical "elective monarchy".[72]

Wilson was alone in his support for direct election. A few delegates such as Sherman, Gerry and Pierce Butler of South Carolina opposed direct election of the executive because they considered the people too easily manipulated. However, most delegates did not question the intelligence of the voters, rather what concerned them was the slowness by which information spread in the late 18th century. Due to a lack of information, the average voter would be too ignorant about the candidates to make an informed decision.[73]

Initially, a majority of delegates favored the president's election by Congress; though there was concern that this would give the legislature too much power. Southern delegates supported selection by state legislatures, but this was opposed by nationalists such as Madison who feared that such a president would become a power broker between different state interests rather than a symbol of national unity. Realizing that direct election was impossible, Wilson proposed what would become the electoral college—the states would be divided into districts in which voters would choose electors who would then elect the president. This would preserve the separation of powers and keep the state legislatures out of the selection process.[74]

The issue was one of the last major issues to be resolved, and was done so in the electoral college. At the time, before the formation of modern political parties, there was widespread concern that candidates would routinely fail to secure a majority of electors in the electoral college. The method of resolving this problem therefore was a contested issue. Most thought that the house should then choose the president, since it most closely reflected the will of the people. This caused dissension among delegates from smaller states, who realized that this would put their states at a disadvantage. To resolve this dispute, the Convention agreed that the house would elect the president if no candidate had an electoral college majority, but that each state delegation would vote as a bloc, rather than individually.[75]

The office of Vice President was also included later in the deliberations, mainly to provide the president a successor if he was unable to complete his term but also to provide presidential electors with an incentive to vote for at least one out of state candidate in addition to a "favorite son" from their own state or region.

Judiciary[edit]

In the English tradition, judges were seen as being agents of the King and his court, who represented him throughout his realm.[76] Madison believed that in the American states, this direct link between state executives and judges was a source of corruption through patronage, and thought the link had to be severed between the two, thus creating the "third branch" of the judiciary which had been without any direct precedent before this point.[76] Madison, however, did not believe that the judiciary should be truly independent, but rather beholden to the legislature rather than the executive. At the Convention, some sided with Madison that the legislature should choose judges, while others believed the president should choose judges. A compromise was eventually reached that the president should choose judges and the Senate confirm them.[77]

Apportionment[edit]

As the Convention was entering its second full month of deliberations, it was decided that further consideration of the prickly question of how to apportion representatives in the national legislature should be referred to a committee composed of one delegate from each of the eleven states that were present at that time at the Convention. The members of this "Grand Committee," as it has come to be known, included Elbridge Gerry, Oliver Ellsworth, Robert Yates, William Paterson, Gunning Bedford, Jr., George Mason, William Davie, John Rutledge, Abraham Baldwin, and Benjamin Franklin. In its report to the Convention on July 5, the committee offered a compromise. The large states had opposed the Connecticut Compromise, because they felt it gave too much power to the smaller states. The Grand Committee's proposal added the requirement that revenue bills originate in the lower house and not be subject to modification by the upper house (although this Origination Clause would later be modified so that revenue bills could be amended in the upper house, or Senate).[78] With this modification, the Convention in a close vote adopted the compromise on July 16. Nationalist delegates remained bitterly opposed, however, until on July 23 they succeeded in further modifying the compromise to give members of the Senate individual voting power, rather than having votes taken by each state's representatives en bloc, as had occurred in Congress under the Articles of Confederation.[79] This accomplished the nationalist goal of preventing state governments from having a direct say in Congress's choice to make national laws.[80] The final document was thus a mixture of Madison's original "national" constitution and the desired "federal" Constitution that many of the delegates sought.[78]

First draft[edit]

The Convention adjourned from July 26 to August 6 to await the report of the Committee of Detail, which was to produce a first draft of the Constitution. It was chaired by John Rutledge, with the other members including Edmund Randolph, Oliver Ellsworth, James Wilson, and Nathaniel Gorham.

Though the committee did not record minutes of its proceedings, three key surviving documents offer clues to the committee's handiwork: an outline by Randolph with edits by Rutledge, extensive notes and a second draft by Wilson, also with Rutledge's edits, and the committee's final report to the Convention.[81]:168 From this evidence it is thought that the committee used the original Virginia Plan, the decisions of the Convention on modifications to that plan, and other sources, such as the Articles of Confederation, provisions of the state constitutions, and even Charles Pinckney's plan, to produce the first full draft,[82][81]:165 which author David O. Stewart has called a "remarkable copy-and-paste job."[81]:165

Randolph adopted two rules in preparing his initial outline: that the Constitution should only include essential principles, avoiding minor provisions that would change over time, and that it should be stated in simple and precise language.[83]

Much of what was included in the committee's report consisted of numerous details that the Convention had never discussed but which the committee correctly viewed as uncontroversial and unlikely to be challenged; and as such, much of the committee's proposal would ultimately be incorporated into the final version of the Constitution without debate.[81]:169 Examples of these details included the Speech and Debate Clause, which grants members of Congress immunity for comments made in their jobs, and the rules for organizing the House of Representatives and the Senate.

However, Rutledge, himself a former state governor, was determined that while the new national government should be stronger than the Confederation government had been, the national government's power over the states should not be limitless; and at Rutledge's urging, the committee went beyond what the Convention had proposed. As Stewart describes it, the committee "hijacked" and remade the Constitution, altering critical agreements the Convention delegates had already made, enhancing the powers of the states at the expense of the national government, and adding several far-reaching provisions that the Convention had never discussed.[81]:165

John Rutledge, a judge and former governor of South Carolina, chaired the committee that wrote the first draft of the Constitution. He argued for a federal government of limited power.

The first major change, insisted on by Rutledge, was meant to sharply curtail the essentially unlimited powers to legislate "in all cases for the general interests of the Union" that the Convention only two weeks earlier had agreed to grant the Congress. Rutledge and Randolph worried that the broad powers implied in the language agreed on by the Convention would have given the national government too much power at the expense of the states. In Randolph's outline the committee replaced that language with a list of 18 specific "enumerated" powers, many adopted from the Articles of Confederation, that would strictly limit the Congress' authority to measures such as imposing taxes, making treaties, going to war, and establishing post offices.[84][81]:170–71 Rutledge, however, was not able to completely convince all of the members of the committee to accept the change. Over the course of a series of drafts, a catchall provision (the "Necessary and Proper Clause") was eventually added, most likely by Wilson, a nationalist little concerned with the sovereignty of individual states, giving the Congress the broad power "to make all Laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."[85][81]:171–72 Another revision of Wilson's draft also placed eight specific limits on the states, such as barring them from independently entering into treaties and from printing their own money, providing a certain degree of balance to the limits on the national government intended by Rutledge's list of enumerated powers.[86][81]:172 In addition, Wilson's draft modified the language of the Supremacy Clause adopted by the Convention, to ensure that national law would take precedence over inconsistent state laws.[81]:172

These changes set the final balance between the national and state governments that would be entered into the final document, as the Convention never challenged this dual-sovereignty between nation and state that had been fashioned by Rutledge and Wilson.[81]:172

Another set of radical changes introduced by the Committee of Detail proved far more contentious when the committee's report was presented to the Convention. On the day the Convention had agreed to appoint the committee, Southerner Charles Cotesworth Pinckney, of South Carolina, had warned of dire consequences should the committee fail to include protections for slavery in the Southern states, or allow for taxing of Southern agricultural exports.[87][81]:173 Pinckney and his fellow Southern delegates must have been delighted to see that the committee had included three provisions that explicitly restricted the Congress' authority in ways favorable to Southern interests. The proposed language would bar the Congress from ever interfering with the slave trade. It would also prohibit taxation of exports, and would require that any legislation concerning regulation of foreign commerce through tariffs or quotas (that is, any laws akin to England's "Navigation Acts") pass only with two-thirds majorities of both houses of Congress. While much of the rest of the committee's report would be accepted without serious challenge on the Convention floor, these last three proposals would provoke outrage from Northern delegates and slavery opponents.[88][81]:173–74

The final report of the committee, which became the first draft of the Constitution, was the first workable constitutional plan, as Madison's Virginia Plan had simply been an outline of goals and a broad structure. Even after it issued this report, the committee continued to meet off and on until early September.

Further modifications and concluding debate[edit]

Another month of discussion and relatively minor refinement followed, during which several attempts were made to alter the Rutledge draft, though few were successful. Some wanted to add property qualifications for people to hold office, while others wanted to prevent the national government from issuing paper money.[81]:187 Madison in particular wanted to push the Constitution back in the direction of his Virginia plan.

One important change that did make it into the final version included the agreement between northern and southern delegates to empower Congress to end the slave trade starting in 1808. Southern and northern delegates also agreed to strengthen the Fugitive Slave Clause in exchange for removing a requirement that two-thirds of Congress agree on "navigation acts" (regulations of commerce between states and foreign governments). The two-thirds requirement was favored by southern delegates, who thought Congress might pass navigation acts that would be economically harmful to slaveholders.[81]:196

Once the Convention had finished amending the first draft from the Committee of Detail, a new set of unresolved questions were sent to several different committees for resolution. The Committee of Detail was considering several questions related to habeas corpus, freedom of the press, and an executive council to advise the president. Two committees addressed questions related to the slave trade and the assumption of war debts.

A new committee was created, the Committee on Postponed Parts, to address other questions that had been postponed. Its members, such as Madison, were delegates who had shown a greater desire for compromise and were chosen for this reason as most in the Convention wanted to finish their work and go home.[81]:207 The committee dealt with questions related to the taxes, war making, patents and copyrights, relations with indigenous tribes, and Franklin's compromise to require money bills to originate in the House. The biggest issue they addressed was the presidency, and the final compromise was written by Madison with the committee's input.[81]:209 They adopted Wilson's earlier plan for choosing the president by an electoral college, and settled on the method of choosing the president if no candidate had an electoral college majority, which many such as Madison thought would be "nineteen times out of twenty".

The committee also shortened the president's term from seven years to four years, freed the president to seek re-election after an initial term, and moved impeachment trials from the courts to the Senate. They also created the office of the vice president, whose only roles were to succeed a president unable to complete a term of office, to preside over the Senate, and to cast tie-breaking votes in the Senate. The committee transferred important powers from the Senate to the president, for example the power to make treaties and appoint ambassadors.[81]:212 One controversial issue throughout much of the Convention had been the length of the president's term, and whether the president was to be term limited. The problem had resulted from the understanding that the president would be chosen by Congress; the decision to have the president be chosen instead by an electoral college reduced the chance of the president becoming beholden to Congress, so a shorter term with eligibility for re-election became a viable option.

Near the end of the Convention, Gerry, Randolph, and Mason emerged as the main force of opposition. Their fears were increased as the Convention moved from Madison's vague Virginia Plan to the concrete plan of Rutledge's Committee of Detail.[81]:235 Some have argued that Randolph's attacks on the Constitution were motivated by political ambition, in particular his anticipation of possibly facing rival Patrick Henry in a future election. The main objection of the three was the compromise that would allow Congress to pass "navigation acts" with a simple majority in exchange for strengthened slave provisions.[81]:236 Among their other objections was an opposition to the office of vice president.

Though most of their complaints did not result in changes, a couple did. Mason succeeded in adding "high crimes and misdemeanors" to the impeachment clause. Gerry also convinced the Convention to include a second method for ratification of amendments. The report out of the Committee of Detail had included only one mechanism for constitutional amendment, in which two-thirds of the states had to ask Congress to convene a convention for consideration of amendments. Upon Gerry's urging, the Convention added back the Virginia Plan's original method whereby Congress would propose amendments that the states would then ratify.[81]:238 All amendments to the Constitution, save the 21st amendment, have been made through this latter method.

Despite their successes, these three dissenters grew increasingly unpopular as most other delegates wanted to bring the Convention's business to an end and return home. As the Convention was drawing to a conclusion, and delegates prepared to refer the Constitution to the Committee on Style to pen the final version, one delegate raised an objection over civil trials. He wanted to guarantee the right to a jury trial in civil matters, and Mason saw in this a larger opportunity. Mason told the Convention that the constitution should include a bill of rights, which he thought could be prepared in a few hours. Gerry agreed, though the rest of the committee overruled them. They wanted to go home, and thought this was nothing more than another delaying tactic.[81]:241

Few at the time realized how important the issue would become, with the absence of a bill of rights becoming the main argument of the anti-Federalists against ratification. Most of the Convention's delegates thought that states already protected individual rights, and that the Constitution did not authorize the national government to take away rights, so there was no need to include protections of rights. Once the Convention moved beyond this point, the delegates addressed a couple of last-minute issues. Importantly, they modified the language that required spending bills to originate in the House of Representatives and be flatly accepted or rejected, unmodified, by the Senate. The new language empowered the Senate to modify spending bills proposed by the House.[81]:243

Drafting and signing[edit]

U.S. Postage, Issue of 1937, depicting Delegates at the signing of the Constitution, engraving after a painting by Junius Brutus Stearns[89]

Once the final modifications had been made, the Committee of Style and Arrangement was appointed "to revise the style of and arrange the articles which had been agreed to by the house." Unlike other committees, whose members were named so the committees included members from different regions, this final committee included no champions of the small states. Its members were mostly in favor of a strong national government and unsympathetic to calls for states' rights.[81]:229–30 They were William Samuel Johnson (Connecticut), Alexander Hamilton (New York), Gouverneur Morris (Pennsylvania), James Madison (Virginia), and Rufus King (Massachusetts). On Wednesday, September 12, the report of the "committee of style" was ordered printed for the convenience of the delegates. For three days, the Convention compared this final version with the proceedings of the Convention. The Constitution was then ordered engrossed on Saturday, September 15 by Jacob Shallus, and was submitted for signing on September 17. It made at least one important change to what the Convention had agreed to; King wanted to prevent states from interfering in contracts. Although the Convention never took up the matter, his language was now inserted, creating the contract clause.[81]:243

Gouverneur Morris is credited, both now and then, as the chief draftsman of the final document, including the stirring preamble. Not all the delegates were pleased with the results; thirteen left before the ceremony, and three of those remaining refused to sign: Edmund Randolph of Virginia, George Mason of Virginia, and Elbridge Gerry of Massachusetts. George Mason demanded a Bill of Rights if he was to support the Constitution. The Bill of Rights was not included in the Constitution submitted to the states for ratification, but many states ratified the Constitution with the understanding that a bill of rights would soon follow.[90] Shortly before the document was to be signed, Gorham proposed to lower the size of congressional districts from 40,000 to 30,000 citizens. A similar measure had been proposed earlier, and failed by one vote. George Washington spoke up here, making his only substantive contribution to the text of the Constitution in supporting this move. The Convention adopted it without further debate. Gorham would sign the document, although he had openly doubted whether the United States would remain a single, unified nation for more than 150 years.[81]:112 Ultimately, 39 of the 55 delegates who attended (74 had been chosen from 12 states) ended up signing, but it is likely that none were completely satisfied. Their views were summed up by Benjamin Franklin, who said, "I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. ... I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. ... It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies ..."[91]

Rhode Island never sent delegates, and two of New York's three delegates did not stay at the Convention for long. Therefore, as George Washington stated, the document was executed by "eleven states, and Colonel Hamilton."[81]:244 Washington signed the document first, and then moving by state delegation from north to south, as had been the custom throughout the Convention, the delegates filed to the front of the room to sign their names.

At the time the document was signed, Franklin gave a persuasive speech involving an anecdote on a sun that was painted on the back of Washington's Chippendale chair.[92] As recounted in Madison's notes:

Whilst the last members were signing it Doctor. Franklin looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.[92][93]

The Constitution was then submitted to the states for ratification, pursuant to its own Article VII.[94]

Proposed plans[edit]

Several plans were introduced, with the most important plan being that of James Madison (the Virginia Plan). The Convention's work was mostly a matter of modifying this plan. Charles Pinckney also introduced a plan, although this was not considered and its exact character has been lost to history. After the Convention was well under way, the New Jersey Plan was introduced though never seriously considered.[61] It was mainly a protest to what some delegates thought was the excessively radical change from the Articles of Confederation.[61] Alexander Hamilton also offered a plan after the Convention was well under way, though it included an executive serving for life and therefore the delegates felt it too closely resembled a monarchy.[95] Historians are unsure how serious he was about this, and some have speculated that he may have done it to make Madison's plan look moderate by comparison.[95] The Connecticut Compromise was not a plan but one of several compromises offered by the Connecticut delegation. It was key to the ultimate ratification of the constitution, but was only included after being modified by Benjamin Franklin in order to make it more appealing to larger states.[78]

Virginia Plan[edit]

The Virginia Plan

Prior to the start of the Convention, the Virginian delegates met and, drawing largely from Madison's suggestions, came up with what came to be known as the Virginia Plan, also known as the Large State Plan. For this reason, James Madison is sometimes called the Father of the Constitution.[96] The plan was modeled on the state governments and was written in the form of fifteen resolutions outlining basic principles.[97]

The Virginia Plan proposed a very powerful bicameral legislature. Representation in both houses of the legislature would be determined proportionately. The lower house would be elected by the people, and the upper house would be elected by the lower house.The national government would be superior to state governments and possess veto power over state legislation.[96] It lacked the system of checks and balances that would become central to the US Constitution. Instead, the legislative branch controlled the entire government, appointing all judges and the executive.[97] The executive would exist solely to ensure that the will of the legislature was carried out. The plan would have created a Council of Revision composed of the executive and some national judges that could veto laws passed by the legislature, subject to override.[96]

New Jersey Plan[edit]

The New Jersey Plan

After the Virginia Plan was introduced, New Jersey delegate William Paterson asked for an adjournment to contemplate the Plan.[98] Under the Articles of Confederation, each state had equal representation in Congress, exercising one vote each.[98] The Virginia Plan threatened to limit the smaller states' power by making both houses of the legislature proportionate to population. On June 14 and 15, 1787, a small-state caucus met to create a response to the Virginia Plan. The result was the New Jersey Plan, otherwise known as the Small State Plan.[98]

Paterson's New Jersey Plan was ultimately a rebuttal to the Virginia Plan, and was much closer to the initial call for the Convention: drafting amendments to the Articles of Confederation to fix the problems in it.[98] Under the New Jersey Plan, the existing Continental Congress would remain, but it would be granted new powers, such as the power to levy taxes and force their collection.[98] An executive branch was created, to be elected by Congress (the plan allowed for a multi-person executive).[98] The executives would serve a single term and were subject to recall on the request of state governors.[98] The plan also created a judiciary that would serve for life, to be appointed by the executives.[98] Lastly, any laws set by Congress would take precedence over state laws.[98] When Paterson reported the plan to the Convention on June 15, 1787, it was ultimately rejected, but it gave the smaller states a rallying point for their interests.[98]

Hamilton's plan[edit]

The Hamilton Plan

Unsatisfied with the New Jersey Plan and the Virginia Plan, Alexander Hamilton proposed his own plan. It also was known as the British Plan, because of its resemblance to the British system of strong centralized government.[98] In his plan, Hamilton advocated virtually doing away with state sovereignty and consolidating the states into a single nation.[98] The plan featured a bicameral legislature, the lower house elected by the people every three years. The upper house would be elected by electors chosen by the people and would serve for life.[98] The plan also gave the Governor, an executive elected by electors for a life-term of service, an absolute veto over bills.[98] State governors would be appointed by the national legislature,[98] and the national legislature had veto power over any state legislation.[98]

Hamilton presented his plan to the Convention on June 18, 1787.[98] The plan was perceived as a well-thought-out plan, but it was not considered, because it resembled the British system too closely.[98] It also contemplated the loss of most state authority, which the states were unwilling to allow.

Pinckney's plan[edit]

The Pinckney Plan

Immediately after Randolph finished laying out the Virginia Plan, Charles Pinckney of South Carolina presented his own plan to the Convention. As Pinckney did not write it down, the only evidence of the plan are Madison's notes,[99] so the details are somewhat vague. It was a confederation, or treaty, among the thirteen states. There was to be a bicameral legislature made up of a Senate and a House of Delegates. The House would have one member for every one thousand inhabitants. The House would elect Senators who would serve by rotation for four years and represent one of four regions. Congress would meet in a joint session to elect a President, and would also appoint members of the cabinet. Congress, in joint session, would serve as the court of appeal of last resort in disputes between states. Pinckney did also provide for a supreme Federal Judicial Court. The Pinckney plan was not debated, but it may have been referred to by the Committee of Detail.[100]

Connecticut Compromise[edit]

The Connecticut Compromise, forged by Roger Sherman from Connecticut, was proposed on June 11.[98] In a sense it blended the Virginia (large-state) and New Jersey (small-state) proposals. Ultimately, however, its main contribution was in determining the apportionment of the Senate, and thus retaining a federal character in the constitution. Sherman sided with the two-house national legislature of the Virginia Plan, but proposed "That the proportion of suffrage in the 1st. 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."[98] This plan failed at first, but on July 23 the question was finally settled.[98]

What was ultimately included in the constitution was a modified form of this plan. In the Grand Committee, Benjamin Franklin successfully proposed the requirement that revenue bills originate in the house. But the final July 16 vote on the compromise still left the Senate looking like the Confederation Congress. In the preceding weeks of debate, Madison, King, and Gouverneur Morris each vigorously opposed the compromise for this reason.[101] Then on July 23, just before most of the convention's work was referred to the Committee of Detail, Morris and King moved that state representatives in the Senate be given individual votes, rather than voting en bloc, as they had in the Confederation Congress. Oliver Ellsworth of Connecticut, a leading proponent of the compromise, supported their motion, and the Convention adopted it.[79] As the personally powerful senators were to receive terms much longer than the state legislators who appointed them, they became substantially independent. The compromise nonetheless continued to serve the self-interest of small-state political leaders, who were assured of access to more seats in the Senate than they might otherwise have obtained.[80]

Slavery[edit]

One of the most difficult issues confronting the delegates was that of slavery. Slavery was widespread in the states at the time of the Convention.[81]:68 At least a third of the Convention's 55 delegates owned slaves, including all of the delegates from Virginia and South Carolina.[81]:68–69 Slaves comprised approximately one-fifth of the population of the states,[102]:139 and apart from northernmost New England, where slavery had largely been eliminated, slaves lived in all regions of the country.[102]:132 However, more than 90% of the slaves[102]:132 lived in the South, where approximately 1 in 3 families owned slaves (in the largest and wealthiest state, Virginia, that figure was nearly 1 in 2 families).[102]:135 The entire agrarian economy of the South was based on slave labor, and the Southern delegates to the Convention were unwilling to accept any proposal that they believed would threaten the institution.

Commerce and Slave Trade Compromise[edit]

Quaker John Dickinson argued forcefully against slavery during the Convention. Once Delaware's largest slaveholder, he had freed all of his slaves by 1787.

Whether slavery was to be regulated under the new Constitution was a matter of such intense conflict between the North and South that several Southern states[which?] refused to join the Union if slavery were not to be allowed. Delegates opposed to slavery were forced to yield in their demands that slavery practiced within the confines of the new nation be completely outlawed. However, they continued to argue that the Constitution should prohibit the states from participating in the international slave trade, including in the importation of new slaves from Africa and the export of slaves to other countries. The Convention postponed making a final decision on the international slave trade until late in the deliberations because of the contentious nature of the issue. During the Convention's late July recess, the Committee of Detail had inserted language that would prohibit the federal government from attempting to ban international slave trading and from imposing taxes on the purchase or sale of slaves. The Convention could not agree on these provisions when the subject came up again in late August, so they referred the matter to an eleven-member committee for further discussion. This committee helped work out a compromise: Congress would have the power to ban the international slave trade, but not for another twenty years (that is, not until 1808). In exchange for this concession, the federal government's power to regulate foreign commerce would be strengthened by provisions that allowed for taxation of slave trades in the international market and that reduced the requirement for passage of navigation acts from two-thirds majorities of both houses of Congress to simple majorities.[103]

Three-Fifths Compromise[edit]

Another contentious slavery-related question was whether slaves would be counted as part of the population in determining representation of the states in the Congress, or would instead be considered property and as such not be considered for purposes of representation.[104] Delegates from states with a large population of slaves argued that slaves should be considered persons in determining representation, but as property if the new government were to levy taxes on the states on the basis of population.[104] Delegates from states where slavery had become rare argued that slaves should be included in taxation, but not in determining representation.[104] Finally, delegate James Wilson proposed the Three-Fifths Compromise.[98] This was eventually adopted by the Convention.

Framers of the Constitution[edit]

Fifty-five delegates attended sessions of the Constitutional Convention, and are considered the Framers of the Constitution, although only 39 delegates actually signed.[105][106] The states had originally appointed 70 representatives to the Convention, but a number of the appointees did not accept or could not attend, leaving 55 who would ultimately craft the Constitution.[105]

Almost all of the 55 Framers had taken part in the Revolution, with at least 29 having served in the Continental forces, most in positions of command.[107] All but two or three had served in colonial or state government during their careers.[108] The vast majority (about 75%) of the delegates were or had been members of the Confederation Congress, and many had been members of the Continental Congress during the Revolution.[81]:25 Several had been state governors.[108][107] Just two delegates, Roger Sherman and Robert Morris, would be signatories to all three of the nation's founding documents: the Declaration of Independence, the Articles of Confederation, and the Constitution.[107]

More than half of the delegates had trained as lawyers (several had even been judges), although only about a quarter had practiced law as their principal means of business. There were also merchants, manufacturers, shippers, land speculators, bankers or financiers, two or three physicians, a minister, and several small farmers.[109][107] Of the 25 who owned slaves, 16 depended on slave labor to run the plantations or other businesses that formed the mainstay of their income. Most of the delegates were landowners with substantial holdings, and most, with the possible exception of Roger Sherman and William Few, were very comfortably wealthy.[110] George Washington and Robert Morris were among the wealthiest men in the entire country.[107]

Their depth of knowledge and experience in self-government was remarkable. As Thomas Jefferson in Paris semi-seriously wrote to John Adams in London, "It really is an assembly of demigods."[111][112]

Delegates used two streams of intellectual tradition,[clarification needed] and any one delegate could be found using both or a mixture depending on the subject under discussion: foreign affairs, the economy, national government, or federal relationships among the states.

(*) Did not sign the final draft of the U.S. Constitution. Randolph, Mason, and Gerry were the only three present in Philadelphia at the time who refused to sign.

Several prominent Founders are notable for not participating in the Constitutional Convention. Thomas Jefferson was abroad, serving as the minister to France.[113]:13 John Adams was in Britain, serving as minister to that country, but he wrote home to encourage the delegates. Patrick Henry refused to participate because he "smelt a rat in Philadelphia, tending toward the monarchy." Also absent were John Hancock and Samuel Adams. Many of the states' older and more experienced leaders may have simply been too busy with the local affairs of their states to attend the Convention,[108] which had originally been planned to strengthen the existing Articles of Confederation, not to write a constitution for a completely new national government.

In popular culture[edit]

  • The 1989 film A More Perfect Union, which portrays the events and discussions of the Constitutional Convention, was largely filmed in Independence Hall.
  • In the 2015 Broadway musical Hamilton, Alexander Hamilton's proposal of his own plan during the Constitutional Convention was featured in the song "Non-Stop", which concluded the first act.

See also[edit]

Notes[edit]

  1. ^ Manasseh Cutler was a Congregationalists minister and former Army chaplain from Massachusetts. He arrived directly from lobbying success in New York City during the Northwest Ordinance negotiations at the Congress of the Confederation.[36]

References[edit]

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  5. ^ Klarman 2016, pp. 13–14.
  6. ^ Van Cleve 2017, p. 1.
  7. ^ Larson & Winship 2005, p. 4.
  8. ^ Van Cleve 2017, pp. 4–5.
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  11. ^ Klarman 2016, p. 47.
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  13. ^ Beeman 2009, p. 15.
  14. ^ Klarman 2016, pp. 21–23.
  15. ^ Klarman 2016, p. 34.
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  93. ^ Madison Notes for September 17, 1787.
  94. ^ Akhil Reed Amar (2006). America's Constitution: A Biography. Random House Digital, Inc. p. 29. ISBN 978-0-8129-7272-6.
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  113. ^ Farrand, Max (1913). The Framing of the Constitution of the United States. New Haven: Yale University Press.

Bibliography[edit]

External links[edit]