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Though James Madison has been given the title, “Father of the Constitution,” a case could be made that Gouverneur Morris was second in importance only to the Virginian in shaping the final version of the document. Morris spoke more often (173 times) than any other delegate at the Constitutional Convention of 1787. Though he was often on the losing side of issues and was not a political theorist on the level of Madison, Morris was a leader of the nationalist bloc at the Convention that ultimately carried the day. In addition, it was the native New Yorker who actually crafted much of the language of the United States Constitution.  Download the complete lesson.

This guest blog post was written by Dr. Jeffrey Broadwater, Professor of History at Barton College in Wilson, North Carolina.

We think of judicial review—the power of a court to set aside a law as unconstitutional– as the primary means of enforcing the United States Constitution.  At the same time, we remember James Madison as “the Father of the Constitution.”  It would be logical then to assume that judicial review must have been Madison’s brainchild, but the story of judicial review is a bit more complicated.

At the start of the Constitutional Convention in May 1787, Madison hoped to curb the power of the state assemblies, and although he wanted to strengthen Congress, he also wanted to put checks on the national legislature.  Madison seemed to assume the courts would refuse to enforce obviously unconstitutional legislation; he specifically mentioned ex post facto laws. Otherwise he said almost nothing about judicial review. Instead, Madison proposed that Congress be given the power to veto state laws—he called it “the congressional negative”– and that acts of Congress be subject to review by a “council of revision” consisting of the president and several federal judges.

The other delegates disagreed. In lieu of the congressional negative, they adopted the Supremacy Clause, which required state courts to abide by federal law, state law notwithstanding. Rather than creating a council of revision, the convention vested the veto power solely in the president.

During the ratification debate, Madison suggested the existence of a power of judicial review in his Federalist No. 39 and No. 44 essays, but he complained privately that judicial review improperly exalted judges over legislators, and he doubted a court could enforce an unpopular decision.

Why the reservations about judicial review?  Madison understood the idea, but in the 1780s, judicial review was little more than a theory. Few courts had actually exercised the power; even the popular notion of the separation of powers was a murky concept.  American courts performed a myriad of non-judicial functions from licensing taverns to poor relief. They did not always inspire great confidence. Colonial Americans had often viewed British judges as agents of the Crown. American judges were frequently untrained amateurs, and some of them were overtly partisan.  Madison had reasons to minimize the jurisdiction of the federal courts. Many voters in his native Virginia feared they might be too sympathetic to British creditors or other out-of-state litigants.

But politics, and a judicial revolution that accompanied the nation’s constitutional revolution, made an expanded role for the courts palatable to most of the Founders. After the Constitution was ratified, Madison introduced in Congress a package of constitutional amendments that became the Bill of Rights.  Skeptics dismissed a bill of rights as unenforceable.  Madison, who hoped amendments would placate moderate critics of the Constitution, responded with an argument Thomas Jefferson had suggested to him in a March 15, 1789 letter: the courts could enforce them.  Meanwhile, the courts began to change.  Lawyers replaced non-lawyers on the bench, judges tempered their partisanship, and courts confined their duties to litigation.  Judges grew in prestige, and judicial review, once almost a constitutional afterthought, became an accepted part of American law.

Jeff Broadwater

Barton College

July 18, 2012

In 1789, the United States Constitution went into effect and George Washington was elected as the first leader of the country. If you know your early American history, you’ll remember that Washington was the president of the Constitutional Convention as well. Even though he was in attendance for much of the writing of the Constitution, Washington felt that he needed the document close to him during the presidency. He ordered a personal copy from England (gasp!) so that he could refer to all of articles and sections that applied to him in his new role.

Washington’s signature graces the front page and he makes notes in his own hand throughout the pages. Just in case he forgot, Washington drew brackets and wrote “President” next to the passages regarding the executive powers. This great artifact from Washington’s presidency and life will be sold to the highest bidder on June 22, 2012.

To read more about Washington’s copy of the Constitution, visit For George Washington, the Constitution Was a Cheat Sheet on ABCNews.com.

What do you think a Washington’s Constitution is worth?

Philadelphia – The end of May saw the Convention responding to the Virginia delegation’s bold plan. The Virginians had proposed replacing the Articles of Confederation – a task far beyond what many Convention delegates thought they were authorized to do – with a powerful national government. When proponents of this plan failed to win agreement that such a radical plan was necessary, they moved to the more basic task of achieving consensus on the establishment of a national government consisting of legislative, executive and judicial branches. The devil would be in the details, and through the first week of June, delegates worked through the details of the Virginia Plan. Hiding under those details, however, was the question of whether the delegates were debating a revision of a confederation of sovereign states, or the creation of an entirely new national government that would act directly on citizens.

The Legislative Branch

This question lay under the debate about how to apportion representatives to the national legislature. The Virginia Plan had called for apportionment by population. Its advocates eagerly pushed this proposal until George Read, from tiny Delaware, drew a line in the sand. The delegates from Delaware, he pointed out, were not authorized to give up Delaware’s equal representation, and any attempt to push that issue might force the Delaware delegation to leave the Convention. If the states retained equality of representation, Madison feared, this would endanger the idea of a strong national government and permit the idea of a confederation to continue. He proposed a parliamentary “expedient”  to send this issue to a committee, thus “saving the Delaware deputies from embarrassment”; Mr. Read would not relent, and the motion was tabled.

Though some features of the Virginia Plan earned agreement – a bicameral legislature, the election of the lower house directly by the people, and certain powers of the legislative branch, – there were more setbacks. In particular, the mode of election of the upper house emerged as a point of controversy, and one that was not immediately solved. Further, Madison himself relented on a feature of the Virginia Plan which gave the national legislature the power to call forth force “against any member of the Union failing to fulfill its duty”. Madison (in a statement that Southerners would remember decades later) observed, “A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

The Executive Branch

June 1^st, 2^nd, and 4^th saw extensive discussion of the establishment of the Executive branch. Fear of monarchy made this a complicated debate. The elder statesman, Mr. Benjamin Franklin, followed a long pause in the discussion by encouraging the delegates to make their voices heard. The Convention delegates finally agreed that the Executive branch should be comprised of one person, the President, who would hold the power to affect national laws, appoint officers not otherwise specified, and veto legislation. With great concern surrounding the corruption possible if these powers lie with one person, the delegates determined that any presidential veto will be subject to overrule by a 2/3^rds majority of either house. This was not the last that would be said about the Executive branch, however.

The Judicial Branch

With consensus surrounding the need for a final tribunal in the nation, early June saw the creation of the Supreme Court. The delegates agreed upon the need for a supreme tribunal, yet had many questions surrounding the selection of judges and the establishment of “inferior tribunals” throughout the United States.

On June 5^th the assembly determined that the legislative branch will have the authority to name judges in the Supreme Court and allowed for life-time tenure in office pending “good behavior.”  No consensus could be reached regarding the establishment of “inferior tribunals” and was postponed until a later date.

New State Representation in the Union

Resolution 10 in Edmond Randolph’s Virginia Plan was approved to allow the admission of new states into the country if their bounds feel within the United States.

Franklin was born on January 17, 1706 in Boston, Massachusetts.  Although he was the old sage of the American Revolution and the Founding generation, Benjamin Franklin’s considerable work in the areas of journalism, science, and invention often obscure his many contributions to the creation of the Constitution and protection of American freedoms. His stature was second only to George Washington in lending credibility to the new federal government, and his wisdom helped ensure the structural stability of what is now the oldest written constitution still in force in the world.

Franklin’s Albany Plan of 1754 was the first formal proposal for a union of the English colonies. Though it failed to gain the requisite support, it signaled the colonies’ desire to be more independent from the mother country. Also, the Albany Plan’s federal system government in some ways foreshadowed the political system created by the Constitution three decades later.

As a delegate of the Second Continental Congress, Franklin, along with Thomas Jefferson and John Adams, was a member of the Committee of Five that drafted the Declaration of Independence.  Franklin was the first United States Postmaster General, an ambassador to France, and as a delegate at the Constitutional Convention in 1787.

Franklin was also an early opponent of slavery who feared that the institution would corrode the cords of friendship among the new American states. Despite his abhorrence of the slave system, however, Franklin was willing to compromise on the issue at the Constitutional Convention, and he remained optimistic about the young nation’s prospects.

Franklin began writing an Autobiography in 1771 while he was living in England. The account of his life ends at age 51 (1757), well before the American Revolution, so the book does not discuss the Founding period or the Constitution. It chronicles the first half-century of his life and contains the author’s reflections on life, literature, religion, and philosophy.

Do you or your students share a birthday with any major historical figure?

See our curriculum Founders and the Constitution for a complete lesson on Benjamin Franklin.

Because the Articles of Confederation did not provide an effective national government, a Constitutional Convention was held in Philadelphia during the summer of 1787.  When the new document was brought to the Delaware Ratifying Convention, the delegates were pleased with the new powers of Congress including the power to lay and collect taxes, duties, pay the debts, coin money, and provide for the common defense of the country by raising armies, maintaining a navy, and declaring war.  The new Constitution was a great solution for the citizens of Delaware struggling with their small size and economy and they unanimously and readily ratified the document.

Compared to states like Virginia and Pennsylvania, Delaware was small.  Delaware lacked population, land, and a major economic hub.  Delaware also had a large coastline, but they did not have enough military power to protect themselves from a naval attack on their shores.  The citizens of Delaware believed that a stronger national government under the Constitution would help protect them against attack and level the economic playing field with larger states.

Agriculture was a main economic driver in Delaware, but much of their land was losing its fertility due to over-farming.  The lack of fertility led to lower yields from crops and less money in the pockets of the people of Delaware.  Many farmers were deeply in debt after the American Revolution and Delaware itself was bearing a burden of war debt.  At the time, the national government did not have control over coining money, so each state was responsible for printing their own.  This paper money was next to worthless if you came from a state without economic power like Delaware.

Another major issue for Delaware was that they did not have a seaport for importing and exporting goods.  The national government was not strong enough under the Articles of Confederation to manage economic issues like importing and exporting, so states were left to fend for themselves.  Most materials that came into or out of Delaware had to go through Philadelphia or another large port.  The Pennsylvania government charged high prices and taxes for the imports and exports leading to Delaware’s accrual of even more debt.

John Dickinson, Delaware Delegate to the Philadelphia Convention of 1787, was also known as the Penman of the American Revolution.  In 1768 he had written the Liberty Song, in which he encouraged Americans to stand up for liberty.  “Then join hand in hand brave Americans all, By uniting we stand, by dividing we fall…” A strong voice for ratification in Delaware, he believed the new Constitution would provide the best framework for protecting liberty for generations to come.  In 1787 he wrote, “Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in several orbits.”— John Dickinson (Delaware Delegate), 1787

If you are interested in learning more about John Dickinson and the ratification of the Constitution, see our curriculum Founders and the Constitution, Volume 2.

Source: State of Delaware Public Archives

What do you think of Dickinson’s analogy regarding the relationship between the federal government and the states?

It has become evident to the delegates that they cannot make the decisions about the executive independent of a conversation that discusses the executive’s election, term, powers, and removal in a holistic way. Thus the Brearly Committee is tasked with such a conversation. The result – Article II of the Constitution. Read on for some of the key points that were discussed. Can you spot the things that have changed since the original conversation and can you think of instances when some of the checks & balances set up in this Article have been applied?

How shall the executive be elected and for how long?

Alexander Hamilton was worried the executive would be “a Monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the Government.” Thus he saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. Thus it was agreed that “In every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-president.”

James Wilson reminds the delegates they did not want an aristocracy so they did not want the Senate to elect the president. Concurrently, Edmund Randolph stated “We have in some revolutions of this plan made a bold stroke for monarchy. We are now doing the same for an aristocracy.” Thus it was decided that “Each state shall appoint in such a manner as its Legislature shall direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature.”

Later it was agreed that the “Senate shall choose the Vice-President in the event of a tie for the Vice-Presidency.”

What shall be the powers of the Executive Office?

Much of the discussion regarding the powers of the executive office was related to separation of powers between the Legislative Branch and the Executive Branch. It had been proposed the Vice President act as the President of the Senate. George Mason stated that he believed that if the vice president was President of the Senate than the powers were not really divided.

On nominations – Rufus King was worried that “the people [would] be alarmed at an unnecessary creation of new Corps which must increase the [expense] as well as influence of the Government.”

Both men were overruled. The committee agreed that allowing the Vice President to serve as President of the Senate was a check on the Legislative Branch. And requiring a 2/3 consenting vote from the Legislative Branch would check the Executive Branch on treaties and nominations.

What is the process for removal from office?

The delegates were in agreement that they need to create a process for removal of the executive if they were to commit “high crimes [and misdemeanors against] the State”. Barring a resignation, they agreed there should be a trial. They were not however in agreement of who should proceed over the trial. James Madison believed that a trial by the Senate would make the executive “improperly dependant” on them in day to day business. He preferred that the Supreme Court hold the trial.

Gouverneur Morris disagreed because he thought that the Supreme Court was too few in number and might be subject to corruption and others added that they had already given the executive the power to appoint the judges.

After discussion, it was decided that the House of Representatives would be responsible to request impeachment and that the Senate would hold the trial.

For more resources on how to teach about Article II and the Executive Branch – check out our website: http://www.articleii.org/

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Philadelphia—The delegates, having now tackled topics as challenging as representation in Congress and several issues related to slavery, are beginning to see a light at the end of the tunnel. But decisions remain related to the separation of powers between the three national branches, as well as to federalism: the assignment of powers between the national government and the state governments.

Enumerated Powers of the National Government

Days were devoted to discussing and finalizing the types of powers, and the specific powers themselves, which would be enumerated, or listed. Guiding the delegates was the understanding that the national government would be one of limited powers—if a power was not given to the national government, it would be assumed not to have it. The Congress would be empowered to make rules for commerce among the states, and, for the purpose of discharging the national debt, be able to “collect taxes, duties, imposts, and excises.” The great writ, or habeas corpus, could not be suspended “unless where in cases of Rebellion or invasion the public safety may require it.”

The delegates discuss the establishment and jurisdiction of the judiciary, with the particular concern of keeping the judiciary independent of the other branches. A motion to empower the executive to remove justices on request of the legislature was soundly defeated (7-1).

Another important topic is the division of war powers. Unlike a king, whose power is marked by the ability to go to war on a whim, the President of the United States would be unable to declare war – that power was given to Congress. The President would be commander in chief of the military when it was called into service by the United States.

A Nationalist’s Last Gasp

A constitutional supremacy clause—holding that the Constitution is the supreme law of the land—had been decided several days earlier.  Consequently, state laws would give way to federal laws made in pursuance of the national constitution.  Consistent with this reasoning, James Madison, supported by James Wilson and Charles Pinckney, makes another attempt to give Congress a veto power over state laws.

Many delegates, including George Mason and John Rutledge, objected, asking: would states have to submit all their laws to the general government for approval? Would the general government be empowered to repeal state laws outright? Rutledge pronounced that no state would “ever agree to be bound hand & foot in this manner.” The proposal was narrowly defeated (6-5), along with Madison’s last gasp for a more supreme national government.

State Matters

The delegates dealt with issues related to states: their powers, their relationship to each other, as well as procedures for new states. As part of a union, the states would have obligations to each other: they would be bound to recognize the laws and proceedings of other states. A fugitive slave clause was added, requiring even free states to deliver runaway slaves to their masters. The national government would also have obligations to states: the guarantee of a republican form of government, protection from invasion, and protection from domestic violence upon a governor’s request.

Ratification

The work of the convention would be meaningless if states did not approve the new Constitution. There was near unanimity (9-1) that the Constitution would only go into effect for the states that actually ratified. After defeating proposals to require 13, and then 10 states to ratify in order for the Constitution to go into effect for those states, the delegates finally settled (8-3) on a magic number of nine states. The Confederation Congress would not have to approve the new Constitution.

The Leftovers: The Brearly Committee

With this, the Convention has concluded its discussion of the Committee of Detail Report. To deal with those questions still outstanding, a new committee was formed will consisting of one delegate from each state. This group entitled “The Committee on Unfinished Parts,” would become known as the Brearly Committee after its New Jersey representative, and would deal with those issues that had been postponed.  These would include Congress’s power to spend for the general welfare, creation of the Electoral College method of electing the President, and the President’s role in treaty-making and in appointment of officers.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Philadelphia – When the Convention began their work in earnest in the spring of 1787, its delegates must have known that the complex issue of slavery would be a “make-or-break” matter for the new republic.  Indeed, the volatile issue would wait a full three months into the Convention before being tackled with any level of depth, culminating in a series of compromises over the course of a week in late August 1787.

As there was little presumption amongst the delegates that slavery could, or would, be prohibited outright, the first and easiest element of “the slavery question” was how slaves might be counted within a state’s population for purposes of representation and direct taxation.  On Monday, August 21^st, the Convention took up a piece of the Virginia Plan (introduced in late May) that would set proportional representation of slaves at three-fifths.  The three-fifths proposal, known as the “federal ratio,” was not novel to most in attendance as it had been proposed as an amendment to the Articles of Confederation as early as 1783.  Even though it failed to be ratified due to the near-impossible requirement of that document that any changes acquire unanimous consent, the three-fifths principle nevertheless garnered enough acceptance during the 1780s so as to provide a ready solution to the question at the Convention.  On August 21^st, 1787 the Convention adopted the “Three-Fifths Compromise” with relatively little debate, save an objection by Luther Martin of Maryland who suggested it would serve as federal encouragement of the continued importation of slaves.

In Martin’s objection lay the real heart of the matter, and provided the most explosive debate.  Would Congress have the power to mediate the slavery question at all?  Would the institution be allowed to expand or merely tolerated until it died out?  Could its existence and continuation even be discouraged by the federal government?

On August 21^st the Convention took up debate on language put forth by the Committee of Detail’s August 6^th report.  Driven largely by the demands of North Carolina, South Carolina and Georgia, the language read:  “No tax or duty shall be laid by the Legislature…on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.”  This proposal was a both a blanket prohibition on the power of Congress to ever determine the ultimate fate of the institution, and a denial of power to simply frustrate it through taxation of the slave trade enterprise.

The recorded comments of August 22^nd are enlightening, and even a bit surprising.  Roger Sherman of Connecticut – an opponent of slavery from a “free” state – proposed the language be adopted as-is, suggesting that slavery was on the decline in some southern states and would continue towards its natural death if left alone to do so.  George Mason – himself a slave owner from the southern state of Virginia – conversely argued that it was essential for the national government to have the power to prevent the increase and spread of slavery, observing that “[e]very master of slaves is a petty tyrant…[bringing] the judgment of heaven on a Country.”  Oliver Ellsworth of Connecticut stated that if the immorality of slavery were considered the Convention should go further and free all slaves, but then ultimately suggested that compromise would be best.  Charles Coatsworth Pinckney of South Carolina gave a passionate defense of the economic necessity of slavery to the union, to which John Dickinson of Delaware stated it was “inadmissible on every principle of honor and safety that the importation of slaves should be authorized to the States by the Constitution.”  John Rutledge of South Carolina observed that his state, along with North Carolina and Georgia, might never agree to the Constitution if the language were changed, but Edmund Randolph of Virginia stated that he “could never agree to the clause as it stands.”  Randolph suggested the matter be referred back to the Committee of Detail for compromise language to be drafted, as an impasse on the current language loomed large.  The Convention agreed to Randolph’s suggestion by a vote of 7-3.

The Committee reported back on August 24^th with language that would permit Congress to tax the slave trade, but prohibited outright interference in it until 1800.  The next day Pinckney suggested changing the 1800 proposal to 1808, to which James Madison derisively commented “[t]wenty years will produce all the mischief that can be apprehended from the liberty to import slaves…[s]o long a term will be more dishonorable to the National character than to say nothing about it in the Constitution.”  Madison also “thought it wrong to admit into the Constitution the idea that there could be property in men.” The 1808 language nevertheless passed by a vote of 7-4.  Interestingly, all four noes – New Jersey, Pennsylvania, Delaware and Virginia – voted as such because they thought the language too forgiving of slavery.  No slave-holding state, save Virginia who seemingly expressed an anti-slavery position, voted against giving the new federal government a future power to interfere with the institution.

Far from our current popular interpretation of the Founders as moral and political failures on this most important question, the details of the Convention bear out a very different story: that of fallible men grappling with the moral, social, political and economic intricacies of that horrible institution within its – and their – context.  In reality, they had to choose between a union that allowed for slavery in some form, and no union at all.  While they very clearly chose union AND slavery, they did so in a way that, it was hoped, would loosen the institution’s stranglehold on the union and provided powerful avenues to encourage its eventual demise.

- Written by Jay Shackett, guest author.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

The Convention adjourned from July 26^th to August 6^th to allow the Committee of Detail – composed of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania – to prepare a rough draft of a constitution, based on the series of resolutions the delegates had debated, amended, and debated again. When the Convention re-convened, the Committee of Detail presented its report, made up of twenty-three articles. The Convention spent the remainder of August reviewing and further revising these articles.

We the People of…

Delegates quickly agreed to accept the Committee of Detail’s preamble and Articles I and II, affirming the new government would be called the Unites States of America and consist of Legislative, Executive, and Judicial branches. This agreement masked the critical issue that the Convention had debated throughout – was this to be a union of states or of people? The Committee of Detail’s constitution began, “We the people of the States (emphasis added) of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” The Convention would not end with that language in the preamble.

Representation: Who, What, and How Many?

Discussion of the Committee of Detail report continued to include the structure and powers of the legislative branch. Some of the key questions included: Who can elect representatives? How many representatives will there be? What will be their qualifications?

Delegates debated whether to allow non-land owners to the right to vote for House members, or reserve the franchise to property owners. Gouverneur Morris wanted to restrict voting to those with property, considering them more educated and better able to choose wise leaders. “The ignorant and dependant,” Morris stated, “can be… little trusted with the public interest.” Colonel Mason countered arguments of this kind, saying all citizens should have equal voting rights and privileges.  Doctor Franklin sided with Colonel Mason believing that restricting the right to vote to land owners would cause contention among the people. In the end Morris’s proposal to restrict the franchise to property owners was defeated soundly (7-1-1).

Just as the Convention rejected a plan to restrict voting to property owners, they also rejected a proposal to restrict elective office to property owners. South Carolina’s Charles Pinckney moved that “the President of the U.S., the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a cleared unencumbered Estate” – in an amount to be agreed upon by members of the Convention. This proposal went nowhere. Benjamin Franklin expressed his “dislike of every thing that tended to debase the spirit of the common people,” and observed  that “some of the greatest rogues he was ever acquainted with, were the richest rogues.” Madison reports that Pinckney’s motion “was rejected by so general a no, that the States were not called.”

The Convention did have a sentiment in favor of strong citizenship requirements for legislators. The Committee of Detail’s report required members of the House be U.S. citizens for three years prior to election, and members of the Senate for four years. Some, including George Mason and Morris, agreed that a lengthy citizenship requirement would protect the legislature from foreign intrigue. Others, including Madison and Franklin, pointed to the number of foreign friends who had helped the states during the war for independence. Delegates sided with Mason and Morris, agreeing to requirements that members of the House be citizens for seven years and members of the Senate for nine years prior to election.

On the question of how many representatives would make up the national legislature, Article IV of the Committee of Detail Report stated that the House of Representatives would initially consist of sixty-five members, and that in the future, members of the House would be added “at the rate of one for every forty thousand.” Madison, expecting the Union to grow rapidly, thought that rate would quickly lead the House to grow too large. Others thought that time would make this issue irrelevant. Mr. Nathaniel Gorham from Massachusetts asked, “Can it be supposed that this vast country including the Western territory will 150 years hence remain one nation? Mr. Oliver Ellsworth observed that “If the government should continue so long, alterations may be made in the Constitution” through the amendment process. Delegates agreed to add the language “not exceeding” to the one representative for 40,000 citizen ratio, making that a ceiling and not a floor. Controversy over this provision would re-emerge before the end of the Convention, however.

The Specter of Slavery

Likewise, controversy would emerge about slavery. Consideration of the apportionment of representatives raised the question of whether slaves would be included within that ratio. Morris rose on August 8 and gave a withering criticism of the institution. Moving to specify that this ratio would include only “free” inhabitants, Morris called slavery “a nefarious institution,” and “the curse of heaven”. Comparing free with slave states, Morris noted, on the one hand, “a rich and noble cultivation [which] marks the prosperity and happiness of the people,” and on the other “the misery and poverty which overspread the barren wastes of Virginia, Maryland, and the other states having slaves.” Morris’s motion was defeated 10-1, but the issue of how slavery would be addressed by the new union was by no means resolved.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.