The Confederation government was not without accomplishments. But they were far outweighed by its failures. By 1785 it seemed clear to many Americans, not just a small elite, that the nation needed a more powerful and effective central government to serve its interests and express its patriotic aspirations.
The road to the Constitutional Convention was roundabout, however. The process of revising or replacing the Articles began in 1785 when Maryland and Virginia signed an agreement over navigation on the Potomac River and Chesapeake Bay. The success of this pact induced Maryland to call for a broader arrangement that would include Pennsylvania and Delaware and cover import duties, currency, and other commercial matters. Nationalists in the Virginia legislature quickly proposed that all states meet in September 1786 at Annapolis to consider common commercial problems. Only five states attended the conference, but the nationalists—led by Alexander Hamilton of New York, James Madison of Virginia, and John Dickinson of Delaware—took advantage of the situation. Declaring that a majority was not present, they convinced the delegates to petition Congress for a full-scale convention to meet at Philadelphia in May 1787 to discuss economic problems and fundamental political changes.
By this time, Congress’s long decline had brought it close to paralysis. The Annapolis convention’s resolution was referred to a committee of three, which submitted it to another committee of thirteen that the legislators never got around to appointing. Congress, it seemed, intended to let the proposal die.
Then events in Massachusetts, a center of political turbulence since the 1760s, jolted the country and Congress into action. Massachusetts was one of those states that had obligated itself to pay its war debt. This commitment required substantial amounts of revenue, and the Bay State legislature imposed on its citizens the heaviest taxes in New England. To farmers already suffering from low crop prices, the taxes were a disaster. Debts and bankruptcies soon mounted in the western counties, and many farmers fell behind in their tax payments. As if this were not enough, Massachusetts law required that the pettiest commercial transactions be recorded by a court, with high fees paid to lawyers and court officials. The large volume of legal business resulting from hard times thus added to the heavy load imposed on citizens.
By the summer of 1786 discontent among farmers in the western part of the state had reached the flash point. In late August they convened in Worcester and condemned the taxes and heavy legal fees. Shortly afterward, an armed mob of 1,500 men, eager to end foreclosures for tax delinquency and debt default stopped the convening of the Hampshire County Court. In early September three more county courts were kept from sitting by groups of angry men.
Although the Massachusetts legislature made some effort to ease the burden of debtors, disaffected westerners began to arm and drill as if they expected to take on King George’s redcoats once more. Led by Daniel Shays, a former Continental army officer, they formed a committee to resist what they judged to be intolerable conditions. Meanwhile, in the eastern part of the state, people had begun to panic. In Boston, the governor decided to raise a military force to suppress the disorders. Rather than impose new taxes to support this small array, he appealed to the city’s rich men, who, in their fright, promptly came up with $125,000. In January 1787 a rebel force of 1,200 met the smaller group of state militia at Springfield. The state troops fired a single artillery volley, and the rebels fled in panic. The uprising was over by spring.
Shays’s Rebellion amounted to very little, yet it frightened many people. One citizen insisted that if the rebels had won, there would have been “an abolition of all public and private debts” followed by “an equal distribution of property.” The rebellion also dismayed the country’s nationalists. Washington wrote that he was “mortified beyond expression” by disorders. For the country “to be more exposed in the eyes of the world and more contemptible” than it already was seemed “hardly possible.” Congress at last took heed of the restless mood of many citizens, and on February 21 it voted to ask the states to send delegates to a proposed constitutional convention at Philadelphia.
The meeting, at Independence Hall on May 14, 1787, was an assembly of giants, including George Washington, Benjamin Franklin, James Madison, and Alexander Hamilton. … Seldom has any group taken on so momentous a task. Civilized governments have invariably been the products of a gradual evolution of tradition, experience, and historical accident. The idea of a written frame of government, of a structure of fundamental law put down in precise words at one time, is an American invention. The practice began with the making of state constitutions after 1775. Its finest expression is the federal Constitution of 1787.
The “Founding Fathers” did, of course, draw on the traditions of the colonies and Great Britain; the English experience is embedded in every legal and governmental institution of the United States. They also relied on their understanding of the ancient world, especially Rome, and on the views of the great political and legal thinkers of their own time. But in the end they were guided primarily by their own practical experience of government.
A number of the men at Philadelphia owned substantial amounts of unpaid Continental and state debt certificates. But although most were rich men, their wealth was largely in the form of land. A more important bond among the delegates than their status as creditors was the nationalism, or continentalism. The period from 1781 to 1787, they would have agreed, was indeed critical: America had been treated with contempt abroad and mob rule had threatened at home. There were some defenders of states’ rights at Philadelphia, but most were men who believed that the Articles of Confederation had failed as an instrument of government and that Americans needed a stronger central authority.
Few of the delegates, however, wished to strengthen the government at the expense of freedom. The goal of the majority was balance, an end much harder to achieve. They wished to establish a “mixed” government, combining popular and elitist elements that would protect private property. They intended to construct a strong central government, but one that would preserve local autonomy and local rights. In a nation of continental proportions, the diversity of interests, opinions, and philosophies made the task formidable. During the deliberations, small states would clash with large states, slave states with free states, commercial interests with agrarian interests, democrats with aristocrats, champions of local rights with nationalists. In the end, compromise would be a necessity.
After some preliminary skirmishing over procedural rules, the convention began its real work with a proposal that has come to be known as the Virginia Plan. It advocated, not merely a revision of the Articles of Confederation, but a completely new government, with separate legislative, executive, and Judicial departments. Congress would have two houses, and the states would be represented in each in proportion to population. In each house the elected members would vote as individuals, not as part of a single state unit as they did under the Articles. They would, in effect, represent their constituents, not their states. The legislature would choose the persons to fill positions in the other branches of government.
The Virginia proposal emphasized the central government as opposed to the states. Randolph hoped to establish a “strong consolidated union, in which the idea of states would be nearly annihilated.” The Articles had created a league of virtually independent states; the new plan would confer broad powers on the central government, which would “legislate in all cases to which the separate States are incompetent”—that is, in every area where it chose to go. But the Virginia proposal did not spell out the new government’s powers.
The Virginia Plan was countered by the New Jersey Plan, which recommended that the Articles be revised, not replaced. The new government was to be a “federal,” not a truly centralized one; that is, there would be a central government, but the states would retain independent authority in some spheres. The plan endorsed the one-house legislature of the Articles, in which each state was represented equally. States would continue to vote as units in Congress regardless of wealth or population, so that the states, rather than the people, would be represented in the new government. But the New Jersey Plan did improve on the Articles by granting the national government the power to tax and regulate foreign and interstate commerce. It made federal laws and treaties superior to all state laws, and that, too, was an advance.
It is easy to see that the New Jersey Plan would benefit states with small populations more than the Virginia Plan. If the New Jersey Plan’s arrangement was adopted, the less populous states would have representation in Congress equal to that of the more populous ones. If the other prevailed, their voices would be drowned out by those of their larger neighbors. For this reason it is often said that the two plans represented a conflict between large and small states. But the disagreement was just as much between the strong centralists and their more locally oriented colleagues.
The two proposals became the basis for debate, and both were modified in the discussions. On the whole, the centralizers came out ahead. The new government would have greatly enlarged powers, but they would be specified and not left to Congress to decide. It would also be a true central government. Congress would represent the citizens of the United States, not the states. Members of Congress would therefore vote as individuals, and not merely help cast a state vote. On the other issues of representation, a compromise was adopted. In one house, the Senate, each state would have equal representation regardless of population; in the other, the House of Representatives, population would determine the size of state delegations.
Now members raised the issue of what constituted “population.” Were slaves only property, or were they people? If the former, they might, Like other forms of property, be the basis for levying taxes but could not be considered in calculating a state’s representation in the lower house of Congress. If they were people, they should be counted for determining representation. However, because slaves were not free, and could not vote, treating them as people would give the southern states a voice in Congress disproportionate to the actual number of voters. Each voter in the South, where slaves were numerous, in effect would have more power than each voter in the North, where they were few. Northerners naturally objected to such a scheme. Southerners, noting that their wealth in slaves would force them to pay a heavy tax bill, insisted on some political compensation for the burden they would bear.
The issue was very sensitive. It touched on the continued existence and prosperity of slavery in the South. And slavery, the South’s “peculiar”—that is, special or unique—institution, was entangled in every aspect of southern life. True, ever since the Revolution had proclaimed that “all men are created equal,” the supporters of slavery had been on the defensive. But slaves still tilled the South’s fields, built its fences, and performed its household chores. Though slavery was fast disappearing In the North, only a handful of enlightened southerners were willing to contemplate its total abolition.
The men at Philadelphia would deal with slavery at other points; this time they elected to compromise. Taxes and representation in the lower house of Congress would be based on “the whole number of free Persons,” excluding Indians but including indentured servants and “three-fifths of all other Persons.” Thus, with the “three-fifths compromise,” America’s Founding Fathers managed the neat trick of simultaneously treating a slave as property and as three-fifths of a human being.
Not only did the Founding Fathers compromise on conflicting interests, they also compromised on conflicting principles. As we have noted, the delegates desired both the representative principle on the one hand, and order and rule by the “best men,” a kind of elitism, on the other. Some leaned strongly to one side, some to the other; most were in the middle.
The give-and-take among these approaches resulted in several important features of the Constitution, particularly the principle of separation of powers. Borrowing from the French philosopher, Charles Louis de Montesquieu, the delegates adopted the idea that each branch of government—executive, legislative, and judicial—must exercise distinct powers and be selected in a distinct way. This separation would ensure the independence of each branch. In addition, the Founding Fathers adopted the idea that each branch must be able to “check and balance” the others. By such an arrangement the greatest freedom would be ensured, for if one branch grew too powerful and sought to dominate the others, it could be stopped.
Checks and balances were a defense of freedom in one way, but they could also be a brake on excessive freedom—say of a Daniel Shays. During the years when the states were writing their first constitutions, extreme democrats generally favored weak governors and strong legislatures. At Philadelphia the principle of checks and balances seemed like a fine way to accomplish both things at once: check “the mob” and also check the executive.
To this end, the chief executive was to have a veto over acts of Congress, the popular part of government. But the president was not to be all-powerful. His veto could be overridden by a two-thirds vote of Congress. The chief executive could make treaties with foreign powers, but they would have to be confirmed by a two-thirds vote of the Senate. He was to be commander in chief of the army and navy, but only Congress could declare war. Finally, he could appoint a host of officials, but these appointments would have to be confirmed by the Senate. As a final check on the president—and his appointees—the House of Representatives could bring impeachment charges against federal officials. If impeached officials were then found guilty of “high crimes and misdemeanors” by the Senate, they would be removed from office.
Standing guard against the excesses and abuses of Congress and the president was to be the third branch, the federal judiciary, capped by a Supreme Court. Although it is nowhere stated in the Constitution, legal scholars believe that the delegates at Philadelphia assumed the right of the federal courts to declare acts of Congress contrary to the Constitution and hence invalid. To free the judges of political influence, they gave them lifetime tenure and declared that during their terms of office. Congress could not reduce their salaries.
Checks and balances offered one way to combine strong and stable government with a popular voice. The mixture of democratic and aristocratic methods of choosing the officers of each branch was another. The president would be selected not by the direct vote of the people but by an electoral college chosen by the states. The number of electors from each state would be equal to the number of representatives and senators it sent to Congress. State law would determine how they would be chosen, but it was assumed that they would not be elected directly by the people. Nor was the Senate, the upper house of Congress, conceived of as a stronghold of democracy. Senators would be selected by their state legislatures. To limit popular control of Congress further, senators were to have long terms of six years; only one-third would be seeking re-election in each congressional election held every two years. Finally, the federal judiciary, including the Supreme Court, was to be appointed, and thus far removed from the popular will. To temper these aristocratic features, the House of Representatives would be directly controlled by “the people.” Representatives would be elected for two-year terms by the same liberal rules that governed the selection of members of the lower houses of the state legislatures.
Besides establishing a new structure, the Constitution greatly enlarged the powers and scope of the national government. The new government as we have seen, would impose its authority on the people directly, not through the states. It would also fuse the nation into a single legal whole. Under the new charter each state was required to give “full faith and credit” to all laws and court decisions of the others and to surrender to others all violators of the law who fled across state lines. The new government could also do many specific things its predecessor could not do. It could impose and collect taxes from citizens, though by the Constitution’s original terms these taxes had to be proportionate to each state’s population. It could control and regulate foreign and interstate commerce, although at the urging of the southern states that shipped large amounts of rice and tobacco abroad. It was forbidden to tax exports. The new government had sole control over the coinage of money and could establish a postal system, build post roads, and pass laws of naturalization. The power to establish a system of uniform weights and measures and a uniform bankruptcy law also belonged to the national government. Finally, the Constitution declared that the new government could “make all laws which 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.” This provision, which is known as the elastic clause, later became the justification for greatly expanded federal authority. In sum, a strengthened national government was to exercise broad authority over economic and political affairs, and over a single economic and legal unit.
Still, the Constitution created not a unitary but a federal government; that is, it left the states with independent authority in some spheres. Crime and breaches of the peace were in the states’ jurisdiction, except when a state legislature or governor specifically requested federal help to put down local violence. Social relations, including marriage, divorce, and education, were also left to the states.
Although slavery was considered a “domestic” institution like the family, it could not be left solely to the states’ jurisdiction. Conflict over representation had resulted in the three-fifths compromise, and the problems of slaves escaping to free states as well as the slave trade itself also had to be considered. After much debate, the Philadelphia delegates agreed that Congress could not forbid the foreign slave trade until 1808, but thereafter it might do so if a majority wished. Congress could, however, pass laws to deal with runaway slaves who crossed state lines and guarantee slaveholders the right to recover such fugitives regardless of local antislavery laws.
All through the summer and into September, the delegates debated every issue. The discussion, like the weather, was often heated. To quiet ruffled tempers and encourage greater good will among the delegates, Franklin at one point proposed that a chaplain be invited to open each morning session with a prayer. Washington, the presiding officer, also worked to maintain peace; and although he said little, his dignity and calm demeanor helped to keep the delegates’ differences from getting out of hand.
Nothing could prevent disagreement. A number of the delegates considered the completed draft of the Constitution far too centralizing and denounced the work of the convention. Some went so far as to quit Philadelphia in protest. On the other hand, the most extreme centralizers believed the proposed constitution did not go far enough. Alexander Hamilton wanted the states abolished in favor of a strong, unitary government. The views that ultimately prevailed were those of James Madison, who succeeded in mobilizing the majority around the compromise proposals.
On September 8 the convention sent the completed draft to the Committee of Style and Arrangement This group of five polished the convention’s paragraphs and rearranged them in logical order. One of its members wrote a preamble that described the promotion of “the general welfare” as one of the purposes of the new framework of government. On September 17, 1787, each of the state delegations voted its approval, and the convention adjourned.
