The framing and adoption of the US Constitution

THE CONFEDERATION

The Congress of the Confederation had little government authority. “It could ask for money but not compel payment,” as one historian wrote; “it could enter into treaties but not enforce their stipulations; it could provide for raising of armies but not fill the ranks; it could borrow money but take no proper measures for repayment; it could advise and recommend but not command.”Congress was virtually helpless to cope with foreign relations and a postwar economic depression that would have challenged the resources of a much stronger government. It was not easy to find men of stature to serve in such a body, and it was often hard to gather a quorum of those who did. Yet in spite of its handicaps, the Confederation Congress somehow managed to survive and to lay important foundations. It concluded the Treaty of Paris in 1783. It created the first executive departments. And it formulated principles of land distribution and territorial government that guided westward expansion all the way to the Pacific coast.

Throughout most of the War of Independence, Congress distrusted and limited executive power. It assigned administrative duties to its committees and thereby imposed a painful burden on conscientious members. John Adams, for instance, served on some eighty committees at one time or another. In 1781, however, Congress began to set up three departments: Foreign Affairs, Finance, and War, each with a single head responsible to Congress.

FINANCE

 The closest thing to an executive head of the Confederation was Robert Morris, who as superintendent of finance in the final years of the war became the most influential figure in the government.Morris wanted to make both himself and the Confederation government more powerful. He envisioned a coherent program of taxation and debt management to make the government financially stable; “a public debt supported by public revenue will prove the strongest cement to keep our confederacy together,” he confided to a friend. It would wed to the support of the federal government the powerful influence of the public creditors who had provided wartime supplies. Morris therefore welcomed the chance to enlarge the debt by issuing  new government bonds that would help pay off wartime debts. Because of the government’s precarious finances, these bonds brought only 10¢ to 15¢ on the dollar, but with a sounder Treasury—certainly one with the power to raise taxes—the bonds could be expected to rise in value, creating new capital with which to finance banks and economic development.

In 1781, as part of his plan,Morris secured a congressional charter for the Bank of North America, which would hold government cash, lend money to the government, and issue currency. Though a national bank, it was in part privately owned and was expected to turn a profit for Morris and other shareholders, in addition to performing a crucial public service. But Morris’s program depended ultimately upon a secure income for the government, and it foundered on the requirement of unanimous state approval for amendments to the Articles of Confederation. Local interests and the fear of a central authority—a fear strengthened by the recent quarrels with king and Parliament—hobbled action.

To carry their point, Morris and his nationalist friends in 1783 risked a dangerous gamble. George Washington’s army, encamped at Newburgh, New York, on the Hudson River, had grown restless in the final winter of the war. The soldiers’ pay was late as usual, and experience had given them reason to fear that promised land bounties and life pensions for officers might never be honored once their service was no longer needed. A delegation of concerned officers traveled to Philadelphia with a petition for redress. Soon they found themselves drawn into a scheme to line up the army and public creditors with nationalists in Congress and confront the states with the threat of a coup d’état unless they yielded more power to Congress. Alexander Hamilton, congressman from New York and former aide-de-camp to General Washington, sought to bring his old commander into the plan.

Washington sympathized with the general purpose of Hamilton’s scheme. If congressional powers were not enlarged, he had told a friend, “the band which at present holds us together, by a very feeble thread, will soon be broken, when anarchy and confusion must ensue.” But Washington was just as deeply convinced that a military coup would be both dishonorable and dangerous. In March 1783, when he learned that some of the plotters had planned an unauthorized meeting of officers, he confronted the conspirators.  He told them that any effort by officers to intimidate the government by threatening a mutinous coup violated the very purposes for which the war was being fought and directly challenged his own integrity. While agreeing that the officers had been poorly treated by the government and deserved their long-overdue back pay and future pensions, he expressed his “horror and detestation” of any effort by the military to assume dictatorial powers. A military revolt would open “the flood-gates of civil discord” and “deluge our rising empire in blood.” Before closing his remarks,Washington paused dramatically as he produced a pair of eyeglasses. “Gentlemen,” he apologized, “you will permit me to put on my spectacles, for I have not only grown gray but blind in the service of my country.”He then read a letter from a congressman that explained the nation’s financial plight. It was a virtuoso performance.

When he had finished, his officers, many of them fighting back tears, unanimously adopted resolutions denouncing the recent “infamous propositions,” and the so-called Newburgh Conspiracy came to a sudden end. The Confederation never did put its finances in order. The Continental currency had long since become a byword for worthlessness. It was never redeemed. The debt, domestic and foreign, grew from $11 million to $28 million as Congress paid off citizens’ and soldiers’ claims. Each year, Congress ran a deficit in its operating expenses.

LAND POLICY

Congress might ultimately have hoped to draw an independent income from the sale of western lands. Thinly populated by Indians, French settlers, and a growing number of American squatters, the region north of the Ohio River and west of the Appalachian Mountains had long been the site of overlapping claims by colonies and speculators. Under the Articles of Confederation, land not included within the boundaries of the thirteen original states became public domain, owned and administered by the national government.

As early as 1779, Congress had declared that it would not treat the western lands as colonies. The delegates resolved instead that western lands “shall be . . . formed into distinct Republican states,” equal in all respects to other states. Between 1784 and 1787 policies for the development of the West emerged in three major ordinances of the Confederation Congress. These documents, which rank among its greatest achievements—and among the most important in American history—set precedents that the United States would follow in its expansion all the way to the Pacific. Thomas Jefferson in fact was prepared to grant self-government to western states at an early stage, allowing settlers to meet and choose their own officials. Under the land ordinance that Jefferson wrote in 1784, when the population equalled that of the smallest existing state, the territory would achieve full statehood.

In the Land Ordinance of 1785, the delegates outlined a plan of land surveys and sales that would eventually stamp a rectangular pattern on much of the nation’s surface, a rectilinear grid pattern that is visible from the air in many parts of the country today because of the layout of roads and fields. Wherever Indian titles had been extinguished, the Northwest was to be surveyed and six-mile-square townships established along east-west and northsouth lines. Each township was in turn divided into thirty-six lots (or sections) one mile square (or 640 acres). The 640-acre sections were to be sold at auction for no less than $1 per acre, or $640 total. Such terms favored land speculators,

of course, since few common folk had that much money or were able to work that much land. In later years new land laws would make smaller plots available at lower prices, but in 1785 Congress was faced with an empty Treasury, and delegates believed this system would raise the needed funds most effectively. In each township, however, Congress did reserve the income from the sixteenth section for the support of schools—a significant departure at a time when public schools were rare.

THE NORTHWEST ORDINANCE Spurred by the plans for land sales and settlement, Congress drafted a more specific frame of territorial government to replace Jefferson’s ordinance of 1784. The new plan backed off from Jefferson’s recommendation of early self-government. Because of the trouble that might be expected from squatters who were clamoring for free land, the Northwest Ordinance of 1787 required a period of colonial tutelage. At first the territory fell subject to a governor, a secretary, and three judges, all chosen by Congress. Eventually there would be three to five territories in the region, and when any one had a population of 5,000 free male adults, it could choose an assembly. Congress then would name a council of five from ten names proposed by the assembly. The governor would have a veto over actions by the territorial assembly, and so would Congress. The resemblance to the old royal colonies is clear, but there were two significant differences. For one, the ordinance anticipated statehood when any territory’s population reached a population of 60,000 “free inhabitants.” At that point a convention could be called to draft a state constitution and apply to Congress for statehood. For another, it included a bill of rights that guaranteed religious freedom, legislative representation in proportion to the population, trial by jury, habeas corpus, and the application of common law. Finally, the ordinance excluded slavery permanently from the Northwest—a proviso Jefferson had failed to get accepted in his ordinance of 1784. This proved a fateful decision. As the progress of emancipation in the existing states gradually freed all slaves above the Mason-Dixon line, the Ohio River boundary of the Old Northwest extended the line between freedom and slavery all the way to the Mississippi River, encompassing what would become the states of Ohio, Indiana, Illinois,Michigan, and Wisconsin. The Northwest Ordinance had a larger importance, beyond establishing a formal procedure for transforming territories into states. It represented a sharp break with the imperialistic assumption behind European expansion into the Western Hemisphere. The new states were to be admitted to the American republic as equals.

In seven mountain ranges to the west of the Ohio River, an area in which recent treaties had voided Indian titles, surveying began in the mid-1780s. But before any land sales occurred, a group of speculators from New England presented cash-poor Congress with a seductive offer. Organized in Boston, the group of former army officers took the name of the Ohio Company of Associates and sent the Reverend Manasseh Cutler to present its plan.Cutler, a former chaplain in the Continental army and a co-author of the Northwest Ordinance, proved a persuasive lobbyist, and in 1787 Congress voted a grant of 1.5 million

acres for about $1 million in certificates of indebtedness to Revolutionary War veterans. The arrangement had the dual merit, Cutler argued, of reducing the debt and encouraging new settlement and sales of federal land.

The lands south of the Ohio River followed a different line of development. Title to the western lands remained with Georgia,North Carolina, and Virginia for the time being, but settlement proceeded at a far more rapid pace during and after the Revolution, despite the Indians’ fierce resentment of encroachments upon their hunting grounds. Substantial centers of population grew up around Harrodsburg and Boonesborough in Kentucky and along the Watauga, Holston, and Cumberland Rivers as far west as Nashborough (Nashville). In the Old Southwest active movements for statehood arose early. North Carolina tentatively ceded its western claims in 1784, whereupon the Holston settlers formed the short-lived state of Franklin, which became little more than a bone of contention among rival speculators until North Carolina reasserted control in 1789, shortly before the cession of its western lands became final. Indian land claims, too, were being extinguished. The Iroquois and Cherokees, badly battered during the Revolution, were in no position to resist encroachments by American settlers. By the Treaty of Fort Stanwix (1784), the Iroquois were forced to cede land in western New York and Pennsylvania. With the Treaty of Hopewell (1785), the Cherokees gave up all claims in South Carolina, much of western North Carolina, and large portions of present-day Kentucky and Tennessee. Also in 1785 the major Ohio tribes dropped their claim to most of Ohio, except for a chunk bordering the western part of Lake Erie. The Creeks, pressed by the state of Georgia to cede portions of their lands in 1784–1785, went to war in the summer of 1786 with covert aid from Spanish Florida. When Spanish aid diminished, however, the Creek chief traveled to New York and in 1791 finally struck a bargain that gave the Creeks favorable trade arrangements with the United States but did not restore the lost land.

TRADE AND THE ECONOMY

In its economic life, as in planning westward expansion, the young nation dealt vigorously with difficult problems. Congress had little to do with achievements in the economy, but neither could it bear the blame for an acute economic contraction that occurred between 1770 and 1790, the result primarily of the war and separation from the British Empire. Although farmers enmeshed in local markets maintained their livelihood during the Revolutionary era, commercial agriculture dependent upon trade with foreign markets suffered a severe downturn. The Tidewater region saw many enslaved people carried off by the

British. Chesapeake planters also lost their lucrative foreign markets. Tobacco was especially hard hit. The British decision to close its West Indian colonies to American trade devastated what had been a thriving commerce in timber, wheat, and other foodstuffs.

Merchants suffered even more wrenching adjustments than the farmers. Cut out of the British mercantile system, they had to find new outlets. Circumstances that impoverished some enriched those who financed privateers, supplied the armies on both sides, and hoarded precious goods while demand and prices soared. By the end of the war, a strong sentiment for free trade had developed in both Britain and America. In the memorable year 1776 the Scottish economist Adam Smith published Inquiry into the Nature and Causes of the Wealth of Nations, a classic manifesto against mercantilism. Some British statesmen embraced the new gospel of free trade, but the public and Parliament would cling to the conventions of mercantilism for many years to come.

After the war British trade with America did resume, and American ships were allowed to deliver merican products and return to the United States with British goods. American ships could not carry British goods anywhere else, however. The pent-up demand for familiar goods created a vigorous market in postwar exports to America, fueled by British credit and the hard money that had come into America with foreign aid, the expenditures of foreign armies, and wartime trade and privateering. The result was a quick cycle of postwar boom and bust, a buying spree followed by a money shortage and economic troubles that lasted several years. In colonial days the chronic trade deficit with Britain had been offset by the influx of coins from trade with the West Indies. Now American ships found themselves excluded altogether from the British West Indies. The islands, however, still demanded wheat, fish, lumber, and other products from the mainland, and American shippers had not lost their talent for smuggling. Already American shippers had begun exploring new outlets, and by 1787 their seaports were flourishing more than ever. Freed from colonial restraints, American merchants now had the run of the seas. Trade treaties opened new markets with the Dutch (1782), the Swedes (1783), the Prussians (1785), and the Moroccans (1787), and American shippers found new outlets on their own in Europe, Africa, and Asia. The most spectacular new development, if not the largest, was trade with China. It began in 1784–1785, when the Empress of China sailed from New York to Canton (present-day Guangzhou) and back, around the tip of South America. Profits from its cargo of silks and tea encouraged the outfitting of other ships, which carried ginseng root and other American goods to exchange for the luxury goods of east Asia.

By 1790 the dollar value of American commerce and exports had far outrun the trade of the colonies. Merchants had more ships than they had had before the war. Farm exports were twice what they had been. Although most of the exports were the products of forests, fields, and fisheries, during and after the war more Americans had turned to small-scale manufacturing, mainly for domestic markets.

DIPLOMACY

 The shortcomings and failures of the Articles of Confederation prompted a growing chorus of complaints. In diplomacy there remained the nagging problems of relations with Great Britain and Spain, both of which still kept military posts on American soil and conspired with Indians and white settlers in the West. The British, despite the peace treaty of 1783, held on to a string of forts along the Canadian border. From these they kept a hand in the lucrative fur trade and a degree of influence with the Indian tribes, whom they were suspected of stirring up to make sporadic attacks on American settlements along the frontier. They gave as a reason for their continued occupation the failure of Americans to pay their prewar debts to British creditors.According to one Virginian, a common question in his state was “If we are now to pay the debts due to British merchants, what have we been fighting for all this while?”

Another major irritant to U.S.-British relations was the American confiscation of Loyalist property. The Treaty of Paris had encouraged Congress to stop confiscations of Tory property, to guarantee immunity to Loyalists for twelve months, during which they could return and wind up their affairs, and to recommend that the states give back confiscated property. Persecutions, even lynchings, of Loyalists occurred even after the end of the war. Some Loyalists who had fled to Canada or Britain returned unmolested, however, and resumed their lives in their former homes. By the end of 1787, moreover, at the request of Congress, all the states had rescinded the laws that were in conflict with the peace treaty.

With Spain the chief issues were the southern boundary of the United States and the right to navigate the Mississippi River. According to the preliminary treaty with Britain, the United States claimed a line as far south as the 31st parallel; Spain held out for the line running eastward from the mouth of the Yazoo River (at 32_28_N), which it claimed as the traditional boundary. The Treaty of Paris had also given the Americans the right to navigate the Mississippi River to its mouth. Still, the international boundary ran down the middle of the river for most of its length, and the Mississippi was entirely within Spanish Louisiana in its lower reaches. The right to navigation was crucial to the growing American settlements in Kentucky and Tennessee, but in 1784 Louisiana’s Spanish governor closed the river to American commerce and began to intrigue with Indians against the American settlers and with settlers against the United States.

THE CONFEDERATION’S PROBLEMS

The problems of trans- Appalachian settlers with the British and the Spanish seemed remote from the everyday concerns of most Americans, however. What touched most Americans more were economic troubles and the acute currency shortage after the war. Merchants who found themselves excluded from old channels of imperial trade began to agitate for reprisals. State governments, in response, laid special tonnage duties on British vessels and special tariffs on the goods they brought to the United States. State action alone, however, failed to work because of a lack of uniformity among the states. British ships could be diverted to states whose duties were less restrictive. The other states tried to meet this problem by taxing British goods that flowed across state lines, creating the impression that states were involved in commercial war with each other. Although these duties seldom affected American goods, there was a clear need—it seemed to commercial interests—for a central power to regulate trade.

Mechanics (skilled workers who made, used, or repaired tools and machines) and artisans (skilled workers who made products) were developing an infant industry. Their products ranged from crude iron nails to the fine silver bowls of such smiths as Paul Revere. These skilled workers wanted reprisals against British goods as well as British ships. They sought, and to various degrees obtained from the states, tariffs (taxes) on foreign goods that competed with theirs. The country would be on its way to economic independence, they argued, if only the money that flowed into the country were invested in domestic manufactures instead of being paid out for foreign goods. Nearly all the states gave some preference to American goods, but again the lack of uniformity in their laws put them at crosspurposes, and so urban mechanics along with merchants were drawn into the movement calling for a stronger central government in the interest of uniform regulation.

The shortage of cash and other economic difficulties gave rise to more immediate demands for paper currency as legal tender, for postponement of tax and debt payments, and for laws to “stay” the foreclosure of mortgages. Farmers who had profited during the war found themselves squeezed afterward by depressed crop prices and mounting debts while merchants opened up new trade routes. Creditors demanded hard money, but it was in short supply—and paper money was almost nonexistent after the depreciation of the Continental currency. The result was an outcry for relief, and around 1785 the demand for new paper money became the most divisive issue in state politics. Debtors demanded the addition of paper money as a means of easing repayment, and farmers saw paper money as an inflationary way to raise commodity prices.

In 1785–1786 seven states (Pennsylvania, New York, New Jersey, South Carolina, Rhode Island, Georgia, and North Carolina) began issuing paper money. It served in five of those states—Pennsylvania,New York,New Jersey, South Carolina, and Rhode Island—as a means of extending credit to hardpressed farmers through state loans on farm mortgages. It was variously used to fund state debts and to pay off the claims of veterans. In spite of the cries of calamity at the time, the money never seriously depreciated in Pennsylvania, New York, and South Carolina. In Rhode Island, however, the debtor party ran wild. In 1786 the Rhode Island legislature issued more paper money than any other state in proportion to its population and declared it legal tender in payment of all debts. Creditors fled the state to avoid being paid in worthless paper.

SHAYS’S REBELLION

Newspapers throughout the country followed the chaotic developments in Rhode Island. The little commonwealth, stubbornly independent since the days of Roger Williams, became the prime example of democracy run riot—until its riotous neighbor, Massachusetts, provided the final proof (some said) that the new country was poised on the brink of anarchy: Shays’s Rebellion. There the trouble was not too much paper money but too little, as well as too much taxation.

After 1780 Massachusetts had remained in the grip of a rigidly conservative regime, which levied ever-higher poll and land taxes to pay off a heavy war debt, held mainly by wealthy creditors in Boston. The taxes fell most heavily upon beleaguered farmers and the poor in general.When the Massachusetts legislature adjourned in 1786 without providing either paper money or any other relief from taxes and debts, three western counties erupted in revolt.

Armed bands closed the courts and prevented foreclosures. A ragtag “army” of some 1,200 disgruntled farmers led by Daniel Shays, a destitute war veteran, advanced upon the federal arsenal at Springfield in 1787. Shays and his followers sought a more flexible monetary policy, laws allowing them to use corn and wheat as money, and the right to postpone paying taxes until the depression lifted.

The state responded by sending 4,400 militiamen armed with cannon. The soldiers scattered the debtor army with a single volley that left four farmers dead. The rebel farmers nevertheless had a victory of sorts. The new state legislature included members sympathetic to the agricultural crisis. The legislature omitted direct taxes the following year, lowered court fees, and exempted clothing, household goods, and tools from the debt process. But a more important consequence was the impetus the rebellion gave to conservatism and nationalism.

Rumors, at times deliberately inflated, greatly exaggerated the extent of this pathetic rebellion of desperate men. The Shaysites were linked to the conniving British and accused of seeking to pillage the wealthy. Panic set in among the republic’s elite. “Good God!” George Washington exclaimed when he heard of the incident. Although the rebellion had been suppressed, he worried that it might tempt other disgruntled groups around the country to adopt similar measures. In a letter to Thomas Jefferson, Abigail Adams tarred the Shaysites as “ignorant, restless desperadoes, without conscience or principles, . . . mobbish insurgents [who] are for sapping the foundation” of the struggling young government. Jefferson disagreed. If Abigail Adams and others were overly critical of Shays’s Rebellion, Jefferson was, if anything, too complacent. From his post in Paris, he wrote to a friend back home, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”Abigail Adams was so infuriated by Jefferson’s position that she would not correspond with him for months.

CALLS FOR A STRONGER GOVERNMENT

Well before the outbreaks in New England, the advocates of a stronger central authority had been calling for a convention to revise the Articles of Confederation. Selfinterest led bankers, merchants, and mechanics to promote a stronger central government as the only alternative to anarchy. Gradually Americans were losing the fear of a strong central government as they saw evidence that tyranny might come from other quarters, including the common people themselves.

Such developments led many of the Revolutionary leaders to revise their assessment of the American character. “We have, probably,” concluded George Washington in 1786, “had too good an opinion of human nature in forming our confederation.” Washington and others decided that at any given time only a distinct minority of citizens could be relied upon to set aside their private interests in favor of the common good. Madison and other so-called Federalists concluded that the new republic must now depend for its success upon the constant virtue of the few rather than the publicspiritedness of the many.

In 1785 commissioners from Virginia and Maryland had met at Mount Vernon, at George Washington’s invitation, to promote commerce and economic development and to settle outstanding questions about the navigation of the Potomac River and the Chesapeake Bay.Washington had a personal interest in the river flowing by his door: it was a potential route to the West, with its upper reaches close to the upper reaches of the Ohio, where his military career had begun thirty years before and where he owned substantial property. The delegates agreed on interstate cooperation, and Maryland suggested a further pact with Pennsylvania and Delaware to encourage water transportation between the Chesapeake Bay and the Ohio River; the Virginia legislature agreed and, at Madison’s suggestion, invited all thirteen states to a general discussion of commercial problems. Nine states named representatives, but those from only five appeared at the Annapolis Convention in 1786—neither the New England states nor the Carolinas and Georgia were represented. Apparent failure soon turned into success, however, when the alert Alexander Hamilton, representing New York, presented a resolution for still another convention, in Philadelphia, to consider all measures necessary “to render the constitution of the Federal Government adequate to the exigencies of the Union.”

ADOPTING THE CONSTITUTION

THE CONSTITUTIONAL CONVENTION

After stalling for several months, Congress fell in line in 1787 with a resolution endorsing a convention “for the sole and express purpose of revising the Articles of Confederation.” By then five states had already named delegates; before the meeting, called to begin on May 14, 1787, six more states had acted. New Hampshire delayed until June, and its delegates arrived in July. Fearful of consolidated power, tiny Rhode Island kept aloof throughout. (Critics labeled the fractious little state Rogue Island.) Virginia’s Patrick Henry, an implacable foe of centralized government, claimed to “smell a rat” and refused to represent his state. Twenty-nine delegates from nine states began work on May 25. Altogether, the state legislatures had elected seventy-three men. Fifty-five attended at one time or another, and after four months of deliberations in stifling summer heat, thirty-nine signed the constitution they drafted. The durability and flexibility of that document testify to the remarkable quality of the men who made it. The delegates were surprisingly young:

forty-two was the average age. They were farmers, merchants, lawyers, and bankers, many of them widely read in history, law, and political philosophy, yet they were also practical men of experience, tested in the fires of the Revolution. Twenty-one had served in the conflict, seven had been state governors, most had been members of the Continental Congress, and eight had signed the Declaration of Independence.

The magisterial George Washington served as presiding officer but participated little in the debates. Eighty-one-year-old Benjamin Franklin, the oldest delegate, also said little from the floor but provided a wealth of experience, wit, and common sense behind the scenes. More active in the debates were James Madison, the ablest political philosopher in the group; Massachusetts’s dapper Elbridge Gerry, a Harvard graduate who earned the nickname Old Grumbletonian because, as John Adams once said, he “opposed everything he did not propose”; George Mason, the irritable author of the Virginia Declaration of Rights and a slaveholding planter with a deep-rooted suspicion of all government; the eloquent, arrogant New York aristocrat Gouverneur Morris, who harbored a venomous contempt for the masses; Scottish-born James  Wilson of Pennsylvania, one of the ablest lawyers in the new nation and next in importance at the convention only to Washington and Madison; and Roger Sherman of Connecticut, a self-trained lawyer adept at negotiating compromises. John Adams, like Jefferson, was serving abroad on diplomatic missions.

Also conspicuously absent during most of the convention was Alexander Hamilton, the staunch nationalist who regretfully went home when the other two New York delegates walked out to protest what they saw as the loss of states’ rights.

Madison emerged as the central figure at the convention. Small of stature—barely over five feet tall—and frail in health, the thirty-sixyear- old bookish bachelor was descended from wealthy slaveholding Virginia planters. He suffered from chronic headaches and was painfully shy. Crowds made him nervous, and he hated to use his high-pitched voice in public, much less in open debate. But the Princeton graduate possessed a keen, agile mind and had a voracious appetite for learning, and the convincing eloquence of his arguments proved decisive. “Every person seems to acknowledge his greatness,” wrote one delegate. Another said that Madison “blends together the profound politician with the scholar . . . [and] always comes forward as the best informed man of any point in the debate.”Madison had arrived in Philadelphia with trunks full of books and a head full of ideas. He had been preparing for the convention for months and probably knew more about historic forms of government than any other delegate.

For the most part the delegates’ differences on political philosophy fell within a narrow range. On certain fundamentals they generally agreed: that government derived its just powers from the consent of the people but that society must be protected from the tyranny of the majority; that the people at large must have a voice in their government but that any one group must be kept from abusing power; that a stronger central authority was essential but that all power was subject to abuse. They assumed with Madison that even the best people were naturally selfish, and government, therefore, could not be founded altogether upon a trust in goodwill and virtue. Yet by a careful arrangement of checks and balances, by checking power with countervailing power, the Founding Fathers hoped to devise institutions that could constrain individual sinfulness and channel self-interest to benefit the public good.

THE VIRGINIA AND NEW JERSEY PLANS

At the outset the delegates unanimously elected George Washington president of the convention. One of the first decisions was to meet behind closed doors in order to discourage outside pressures and theatrical speeches to the galleries. The secrecy of the proceedings was remarkably well kept, and knowledge of the debates comes mainly from Madison’s extensive notes.

It was Madison, too, who drafted the proposals that set the framework of  the discussions. These proposals, which came to be called the Virginia Plan, embodied a revolutionary idea: that the delegates scrap their instructions to revise the Articles of Confederation and submit an entirely new document to the states. The plan proposed separate legislative, executive, and judicial branches and a truly national government to make laws binding upon individual citizens as well as states. Congress would be divided into two houses:

a lower house chosen by popular vote and an upper house of senators elected by the state legislatures. Congress could disallow state laws under the plan and would itself define the extent of its and the states’ authority. On June 15 delegates submitted the “New Jersey Plan,” which proposed to keep the existing structure of equal representation of the states in a unicameral Congress but to give Congress the power to levy taxes and regulate commerce and the authority to name a plural executive (with no veto) and a supreme court.

The plans presented the convention with two major issues: whether to amend the Articles of Confederation or draft a new document and whether to determine congressional representation by state or by population. On the first point the convention voted to work toward establishing a national government as envisioned by the Virginians. Regarding the powers of this government, there was little disagreement except in the details. Experience with the Articles had persuaded the delegates that an effective central government, as distinguished from a confederation, needed the power to levy taxes, regulate commerce, raise an army and navy, and make laws binding upon individual citizens. The lessons of the 1780s suggested to them, moreover, that in the interest of order and uniformity the states must be denied certain powers: to issue money, abrogate contracts, make treaties, wage war, and levy tariffs.

But furious disagreements arose. The first clash in the convention involved the issue of congressional representation, and it was resolved by the Great Compromise (sometimes called the Connecticut Compromise, as it was proposed by Roger Sherman), which gave both groups their way. The more populous states won apportionment by population in the House of Representatives; the states that sought to protect states’ power won equality in the Senate, with the vote by individuals, not by states.

An equally contentious struggle ensued between northern and southern delegates over slavery and the regulation of trade, an omen of sectional controversies to come. A South Carolinian stressed that his delegation and the Georgians would oppose any constitution that failed to protect slavery. Few if any of the framers of the Constitution even considered the notion of abolition, and they carefully avoided using the term slavery in the final document. In this they reflected the prevailing attitudes among white Americans. Most agreed with South Carolina’s John Rutledge when he asserted, “Religion and humanity [have] nothing to do with this [slavery] question. Interest alone is the governing principle of nations.”

The “interest” of southern delegates, with enslaved African Americans so numerous in their states, dictated that slaves be counted as part of the population in determining the number of a state’s congressional representatives. Northerners were willing to count slaves when deciding each state’s share of direct taxes but not for purposes of representation. On this issue the Congress of the Confederation had supplied a handy precedent when it sought an amendment to make population rather than land values the standard for fiscal requisitions. The proposed amendment to the Articles of Confederation would have counted three fifths of the slaves for this purpose. The delegates, with little dissent, agreed to incorporate the same three-fifths ratio into the new constitution as a basis for apportioning both representatives and direct taxes.

A more sensitive issue involved an effort to prevent the central government from stopping the transatlantic slave trade. Virginia’s George Mason, himself a slaveholder, condemned the “infernal traffic,” which his state had already outlawed. He argued that the issue concerned “not the importing states alone but the whole union.” People in the western territories were “already calling out for slaves for their new lands.”He feared that they would “fill the country” with enslaved people. Such a development would bring forth “the judgment of Heaven” on the country. Southern delegates were quick to challenge Mason’s reasoning. They argued that the continued importation of slaves was vital to their states’ economies.

To resolve the question, the delegates established a time limit: Congress could not forbid the foreign slave trade before 1808, but it could levy a tax of $10 a head on all imported slaves. In both provisions a sense of delicacy— and hypocrisy—dictated the use of euphemisms. The Constitution spoke of “free Persons” and “all other persons,” of “such persons as any of the States Now existing shall think proper to admit,” and of persons “held to Service of Labor.” The odious word slavery did not appear in the Constitution until the Thirteenth Amendment (1865) abolished the practice.

If the delegates found the slavery issue distracting, they considered irrelevant any discussion of the legal or political role of women under the new constitution. The Revolutionary rhetoric of liberty prompted some women to demand political equality. “The men say we have no business [with politics],” Eliza Wilkinson of South Carolina observed as the Constitution was being framed,“but I won’t have it thought that because we are the weaker sex as to bodily strength we are capable of nothing more than domestic concerns.”

Her complaint, however, fell on deaf ears. There was never any formal discussion of women’s rights at the convention. The new nationalism still defined politics and government as outside the realm of female endeavor. The Constitution also said little about the processes of immigration and naturalization, and most of what it said was negative. In Article II, Section 1, it prohibits any future immigrant from becoming president, limiting that office to a “natural born Citizen.” In Article I, Sections 2 and 3, respectively, it stipulates that no person can serve in the House of Representatives who has not “been seven Years a Citizen of the United States” or in the Senate who has not “been nine Years a Citizen.” On the matter of defining citizenship, the Constitution gives Congress the authority “to establish an uniform Rule of Naturalization,” but offers no further guidance on the matter. As a result, naturalization policy has changed significantly over the years in response to fluctuating social attitudes and political moods. In 1790 the first Congress passed a naturalization law that allowed “free white persons” who had been in the country for as few as two years to be made naturalized citizens in any court. This meant that persons of African descent were denied citizenship by the federal government; it was left to individual states to determine whether free blacks were citizens. And because Indians were not “free white persons,” they were also treated as aliens rather than citizens. Not until 1924 would American Indians be granted citizenship—by an act of Congress rather than a constitutional amendment.

THE SEPARATION OF POWERS

The details of the government structure embedded in the Constitution aroused less debate than the basic issues pitting the large states against the small and the northern states against the southern. Existing state constitutions, several of which already separated powers among legislative, executive, and judicial branches, set an example that reinforced the convention’s resolve to disperse power with checks and balances. Although the Founding Fathers hated royal tyranny, most of them also feared rule by the people and favored various mechanisms to check public passions. Some delegates displayed a thumping disdain for any democratizing of the political system. Elbridge Gerry asserted that most of the nation’s problems “flow from an excess of democracy.” Alexander Hamilton once called the people “a great beast.”

Those elitist views were accommodated by the Constitution’s mixed legislative system. The lower house was designed to be closest to the voters, who elected its delegates every two years. It would be, according to Virginia’s George Mason, “the grand repository of the democratic principle of the Government.” House members should “sympathize with their constituents, should think as they think, & feel as they feel; and for these purposes should even be residents among them.” The upper house, or Senate, its members elected by the state legislatures, was intended to be more detached from the voters. Staggered six-year terms prevent the choice of a majority in any given year and thereby further isolate senators from the passing fancies of public passion.

The decision that a single person be made the chief executive caused the delegates “considerable pause,” according to James Madison. George Mason protested that this would create a “fetus of monarchy.” Indeed, several of the chief executive’s powers actually exceeded those of the British monarch. This was the sharpest departure from the recent experience in state government, where the office of governor had commonly been diluted because of the recent memory of struggles with royal governors. The president had a veto over acts of Congress, subject to being overridden by a two-thirds vote in each house, whereas the royal veto had long since fallen into complete disuse. The president was commander in chief of the armed forces and responsible for the execution of the laws. The chief executive could make treaties with the advice and consent of two thirds of the Senate and had the power to appoint diplomats, judges, and other officers with the consent of a majority of the Senate. The president was instructed to report annually on the state of the nation and was authorized to recommend legislation, a provision that presidents

eventually would take as a mandate to promote extensive programs.

But the president’s powers were limited in certain key areas. The chief executive could neither declare war nor make peace; those powers were reserved for Congress. Unlike the British monarch, moreover, the president could be removed from office. The House could impeach (indict) the chief executive—and other civil officers—on charges of treason, bribery, or “other high crimes and misdemeanors,” and upon conviction the Senate could remove an impeached president by a two-thirds vote. The presiding officer at the trial of a president would be the chief justice, since the usual presiding officer of the Senate (the vice president) would have a personal stake in the outcome.

The leading nationalists—men like James Madison, James Wilson, and Alexander Hamilton—wanted to strengthen the independence of the executive by entrusting the choice to popular election. But an elected executive was still too far beyond the American experience. Besides, a national election would have created enormous problems of organization and voter qualification. Wilson suggested instead that the people of each state choose presidential  electors equal to the number of their senators and representatives. Others proposed that the legislators make the choice. Finally, the convention voted to let the legislature decide the method in each state. Before long nearly all the states were choosing the electors by popular vote, and the electors were acting as agents of the party will, casting their votes as they had pledged them before the election. This method diverged from the original expectation that the electors would deliberate and make their own choices.

On the third branch of government, the judiciary, there was surprisingly little debate. Both the Virginia and the New Jersey Plans had called for a supreme court, which the Constitution established, providing specifically for a chief justice of the United States and leaving up to Congress the number of other justices. Although the Constitution nowhere authorizes the courts to declare laws void when they conflict with the Constitution, the power of judicial review is implied and was soon exercised in cases involving both state and federal laws. Article VI declares the federal constitution, federal laws, and treaties “to be the supreme Law of the Land,” state laws or constitutions “to the Contrary notwithstanding.” The advocates of states’ rights thought this a victory, since it eliminated the proviso in the Virginia Plan for Congress to settle all conflicts between the federal government and individual states. As it turned out, however, the clause became the basis for an important expansion of judicial review of legislative actions.

Although the Constitution extended vast new powers to the national government, the delegates’ mistrust of unchecked power is apparent in repeated examples of countervailing forces: the separation of the three branches of government, the president’s veto, the congressional power of impeachment and removal, the Senate’s power to approve or reject treaties and appointments, the courts’ implied right of judicial review. In addition, the new frame of government specifically forbade Congress to pass bills of attainder (criminal condemnation by a legislative act) or ex post facto laws (laws adopted after an event to criminalize deeds that have already been committed). It also reserved to the states large areas of sovereignty—a reservation soon made explicit by the Tenth Amendment. By dividing sovereignty between the people and the government, the framers of the Constitution provided a distinctive contribution to political theory. That is, by vesting ultimate authority in the people, they divided sovereignty within the government. This constituted a dramatic break with the colonial tradition. The British had always insisted that the sovereignty of the king-in-Parliament was indivisible.

The most glaring defect of the Articles of Confederation, the rule of state unanimity that defeated every effort to amend them, led the delegates to provide a less forbidding though still difficult method of amending the new constitution. Amendments can be proposed either by a two-thirds vote of each house or by a convention specially called, upon application of two thirds of the legislatures. Amendments can be ratified by approval of three fourths of the states acting through their legislatures or in special conventions.

The national convention has never been used, however, and state conventions have been called only once—to ratify the repeal of the Eighteenth Amendment, which had prohibited “the manufacture, sale, or transportation of ” alcoholic beverages.

THE FIGHT FOR RATIFICATION

The final article of the Constitution provided that it would become effective upon ratification by nine states (not quite the three-fourths majority required for amendment). After fighting off efforts to censure the convention for exceeding its authority, the Confederation Congress submitted its work to the states on September 28, 1787. In the ensuing political debate, advocates of the Constitution, who might properly have been called Nationalists because they preferred a strong central government, assumed the more reassuring name of Federalists. Opponents, who favored a more decentralized federal system, became anti-Federalists. The initiative that the Federalists took in assuming their name was characteristic of the whole campaign. They got the jump on their critics. Their leaders had been members of the convention and were already familiar with the document and the arguments on each point. They were not only better prepared but also better organized and, on the whole, made up of the more able leaders in the political community.

THE DECISION OF THE STATES

Ratification gained momentum before the end of 1787, and several of the smaller states were among the first to act, apparently satisfied that they had gained all the safeguards they could hope for in equality of representation in the Senate. Delaware, New Jersey, and Georgia voted unanimously in favor. Massachusetts, still sharply divided in the aftermath of Shays’s Rebellion, was the first state in which the outcome was close. There the Federalists carried the day by winning over two hesitant leaders of the popular party. They dangled before John Hancock the possibility of his becoming vice president and won the acquiescence of Samuel Adams when they agreed to recommend amendments designed to protect human rights, including one that would specifically reserve to the states all powers not granted to the new government. Massachusetts approved the Constitution by 187 to 168 on February 6, 1788. New Hampshire was the ninth state to ratify the Constitution, allowing it to be put into effect, but the Union could hardly succeed without the approval of Virginia, the most populous state, or New York, which had the third highest population and occupied a key position geographically. Both states harbored strong opposition groups. In Virginia, Patrick Henry became the chief spokesman for backcountry farmers who feared the powers of the new government, but wavering delegates were won over by the same strategem as in Massachusetts. When it was proposed that the convention should recommend a bill of rights, Edmund Randolph, who had refused to sign the finished document, announced his conversion to the cause.

RATIFICATION OF THE CONSTITUTION
Order of Ratification	State	Date of signature
1 2 3 4 5 6 7 8 9 10 11 12 13	Delaware Pennsylvania New Jersey Georgia Connecticut Massachusetts Maryland South Carolina New Hampshire Virginia New York North Carolina Rhode Island	December 7, 1787 December 12, 1787 December 18, 1787 January 2, 1788 January 9, 1788 February 6, 1788 April 28, 1788 May 23, 1788 June 21, 1788 June 25, 1788 July 26, 1788 November 21, 1789 May 29, 1790

Upon notification that New Hampshire had become the ninth state to ratify the Constitution, the Confederation Congress began to draft plans for an orderly transfer of power. On September 13, 1788, it selected New York City as the seat of the new government and fixed the date for elections. Each state would set the date for electing the first members of Congress. On October 10, 1788, the Confederation Congress transacted its last business and passed into history. 

“Our constitution is in actual operation,” the elderly Benjamin Franklin wrote to a friend; “everything appears to promise that it will last; but in this world nothing is certain but death and taxes.” George Washington was even more uncertain about the future under the new plan of government. He had told a fellow delegate as the convention adjourned, “I do not expect the Constitution to last for more than twenty years.”

The Constitution has lasted much longer, of course, and in the process it has provided a model of resilient republican government whose features have been repeatedly borrowed by other nations through the years.Yet what makes the U.S. Constitution so distinctive is not its specific provisions but its remarkable harmony with the particular “genius of the people” it governs. The Constitution has been neither a static abstraction nor a “machine that would go of itself,” as the poet James Russell Lowell would later assert. Instead, it has provided a flexible system of government that presidents, legislators, judges, and the people have adjusted to changing social, economic, and political circumstances. In this sense the Founding Fathers not only created “a more perfect Union” in 1787; they also engineered a frame of government whose resilience has enabled later generations to continue to perfect their republican experiment. But the framers of the Constitution failed in one significant respect: in skirting the issue of slavery so as to cement the  Union, they unknowingly allowed tensions over the “peculiar institution” to reach the point where there would be no political solution—only civil war.