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.

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?

Philadelphia –

As September began, the Convention had made remarkable progress toward drafting a new Constitution, but many questions had been left for later. The delegates agreed “to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State….” The “Brearly Committee,” chaired by David Brearly of New Jersey, reported back its suggestions for how to address difficult issues related to the powers of Congress and the shape of the Executive branch.

One issue that touched on the relationships of the states to one another and to the national Legislature was the full faith and credit clause. The Articles of Confederation had such a clause, though it applied very narrowly to state courts: “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” The Brearly Committee report recommended expanding the scope of this full faith and credit to legislative as well as judicial proceedings, and granting the national Legislature a new power to enforce compliance. Delegates settled on the language we now read in Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The Brearly Committee also made recommendations regarding the powers of Congress over commerce and finance. Congress, it was agreed, could “lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare, of the U. S.” Congress would also be given the power of regulating relations with Indian tribes, of making laws to govern federal lands, and of granting patents to protect the rights of inventors and authors of property in their ideas.

Finally, delegates had already agreed to give Congress – as opposed to the Executive – power to “declare war”. The Brearly Committee’s report led to the granting of two new powers to Congress that minimized the Executive power over war.  First, Congress, and not the Executive, was empowered to grant letters of marque and reprisal, which effectively deputized private vessels to capture vessels suspected of piracy and bring them for trial. Second, Congress was empowered “to raise and support armies” but it was stipulated that “no appropriation of money to that use shall be for a longer term than two years.” These powers, among others, reflected a general wariness among the Convention’s delegates of granting too much power to the Executive branch. This wariness is also apparent in the Convention’s inability to settle on the Chief Executive’s powers, mode of election, and term of office, until very late in the Convention. That debate will be the subject of our next post.

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.

Two months into the Convention, the delegates could finally see a light at the end of the tunnel. Delegates had debated the resolutions presented by the delegation of Virginia, amended them, and debated them again. Before sending the revised amendments to a Committee of Detail that would create a rough draft of the Constitution, however, James Wilson and James Madison fought unsuccessfully to restore a constitutional provision they thought critical – a Council of Revision.

Council of Revision

Although the plan had been rejected twice, Wilson and Madison once again proposed that a Council of Revision be added to the Constitution. Consisting of the executive and judicial branch, the Council would be called upon to assess the constitutionality of legislation before becoming law. Madison explained that “experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex.” He believed that this tendency “was the real source of danger to the American Constitution.” Madison urged his colleagues to protect against this grave threat by allowing the judiciary to fortify the president in defending against the overreach of the legislature.

Despite Wilson and Madison’s passionate (and repeated) argument for the Council of Revision, a number of other delegates raised serious concerns. Elbridge Gerry argued that the Council would establish an “improper coalition” between the president and the judiciary. It would be a violation of the separation of powers. Luther Martin pointed out that not only would it be dangerous to mix the powers of the two branches, but that it would be inappropriate for judges to be involved in making laws. The judiciary’s role was to exposit the laws, not make them. On July 21^st, Wilson and Madison’s motion was narrowly defeated by a 4-3-2 vote.

Ratification

Finally, on July 23, the delegates began to discuss ratification of the new Constitution. Oliver Ellsworth and William Paterson motioned to refer the Constitution to the state legislatures for ratification.

The debate heated as several delegates voiced their disagreement. George Mason explained his belief that the Constitution should not be sent to the legislatures, but “to the people with whom all power remains that has not been given up in the Constitutions derived from them.” He feared that if the Constitution was only ratified by the state legislatures – and not the people – it would be subject to criticism and easily reversed. Madison echoed Mason’s concern, explaining “the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution.” For the Constitution to become the supreme law of the land – transcending all other laws and pacts – it must be ratified by the people.

Mason, Madison, and others in disagreement won out, and Ellsworth and Paterson’s motion was defeated 7-3. The delegates then voted 9-1 that, once approved by the Continental Congress, the Constitution would be sent to assemblies chosen by the people for ratification.

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

Philadelphia –

As the convention pressed into the late days of July, debate turned to the revised Virginia Plan’s resolutions on the Executive Branch.

The ninth resolution proposed that “a National Executive be instituted to consist of a single person, to be chosen by the National Legislature for the term of seven years…”. All delegations present agreed that the Executive ought to be composed of a single individual, but other issues raised deep differences between delegates. These differences were chiefly on key principles of republicanism and separation of powers.

Regarding the means of election, Gouverneur Morris of Pennsylvania vigorously opposed election by the national Legislature. Though one of the most aristocratic delegates by background and temperament, Morris feared that election by the Legislature would violate the principle of separation of powers, making the Executive a mere “creature” of that branch. He thought the judgment of the people as a whole would be far more likely to result in the election of a “man of distinguished character,” or of “continental reputation”.

But outside of his fellow Pennsylvanian James Wilson, Morris found little support for direct popular election for the Executive. Charles Pinckney of South Carolina voiced his opinion that it is better to have a few “active and designing men” make this choice. George Mason of Virginia likened Morris’ proposal to asking a blind man to name the colors before him.  The convention shot down Morris’ proposal and affirmed the original—though this solution would only be temporary.

Debate on issues of the term of and eligibility for office was also inconclusive. Momentarily postponing discussion of term length, delegates rejected a proposal to make the Executive ineligible for re-election. On the whole, delegates viewed re-election as an incentive that would drive the Executive to perform his proper duties. But the idea of imposing term limits on the Executive was dropped in favor of a proposal by Virginia’s James McClurg to strike the 7 years term and insert “during good behavior.”

Because the Executive was to be elected by the national Legislature, and because the proposal for making the Executive ineligible for re-election had been rejected, McClurg  – joined by Morris – thought that the only way to ensure a proper separation of powers was to allow the Executive to remain in office, effectively, for life. Madison concurred, drawing an analogy between the Judicial and Executive branches, both of which he believed required complete separation from the power of the Legislature to avoid being absorbed by it.

Others did not accept this logic. Roger Sherman thought the measure redundant. Re-election logically entails that the Executive is behaving properly—especially since the national legislative, the few “active and designing men,” are overseeing the selection process. Mason also bristled at the proposal of an Executive that would serve during good behavior, denouncing that such a policy would lead to the re-establishment of a hereditary monarchy in the new Republic within the lifetime of his children or grandchildren, if not his own. Surely no state, he lectured, “had so far revolted from Republican principles as to have the least bias” toward that proposal.

With the specter of monarchy having been raised, and with Mason having clearly challenged the commitment to republican principles of some of the convention’s leading members – including Madison and Morris – the delegations agreed unanimously to re-open discussion about the Executive. Luther Martin had moved to reconsider the eligibility requirement, in hopes of limiting the Executive to just one term of office. Gouverneur Morris took this opportunity, however, to rebut to Mason and make a case for extensive Executive power. “It has been a maxim in Political Science,” he explained, challenging Mason’s republican ideal, “that Republican Government is not adapted to a large extent of Country”. He reasoned that in a republican government – where the people are represented by the Legislative Branch – the Executive Branch is necessarily weak, and made a case that the Executive Branch “should be the guardian of the people, even of the lower classes, against Legislative tyranny.”

Morris continued to advocate that the Executive keep office during good behavior, but barring that proposed that the Executive be elected directly by the people. Madison (perhaps slightly chastened by Mason) concurred in recommending the Executive be selected by “the people at large,” downplaying his earlier suggestion that the Executive hold office during good behavior. Elbridge Gerry, who continued to display a knack for compromise, stated that both election by the national Legislature and by the people had disadvantages. He proposed a third way – a committee of electors chosen by state Executives. Oliver Ellsworth accepted the idea of electors, but suggested that state Legislatures select them. This compromise was easily approved, as was eligibility for re-election and – for a short time, at least – a six-year term.

Philadelphia –

The Gerry Commission report gave form to the idea, which had been bubbling up in debate, of a union “partly national, partly federal”. Because this idea was gaining momentum, the Gerry Commission report might be seen as the “Nationalists’ Last Gasp.” The bloc of delegates – including James Madison, James Wilson, and Gouverneur Morris – who had hoped to create a new national government that would act on people as individuals (and virtually eliminate any vestiges of state sovereignty), saw the writing on the wall.

July 5 closed with Elbridge Gerry defending the compromise suggested by his committee from attacks by nationalists. “We were neither the same Nation nor different Nations,” he explained, but if the nationalists and the defenders of state sovereignty did not “come to some agreement among ourselves some foreign sword will probably do the work for us.” With this, and with George Mason telling the delegates, in effect, that they would leave over his dead body, debate about the Gerry Committee report began in earnest.

One provision of the report, which said money bills should originate in the lower house, was dealt with rather quickly. Gouverneur Morris – who was (next to Alexander Hamilton) the most vocal defender of aristocracy, and a powerful Senate, in the Convention  – objected forcefully. Benjamin Franklin seems to have been more persuasive in stating that power over the purse strings should be lodged in the house that was most closely tied to the people.

The question of representation – of who should be heard, and how loudly – continued to be difficult. Smaller states were fearful of the proposed ratio of one representative for 40,000 inhabitants; tiny Delaware, it was noted, had just 35,000 inhabitants. In the first enumeration based on this ratio, there would only be 56 representatives in the lower house of Congress. All had to consider how the addition of new states would affect the balance of power. A later compromise fixed this number at 65. For some, even this was too small. George Mason observed that 38 members would make a quorum, and thus 20 votes could make a majority; Madison proposed (unsuccessfully) that the size of the lower house be doubled from 65. Roger Sherman (CT) and John Rutledge (SC) thought 65 too large, as it would be difficult to find enough individuals of a characters fit for public office.

Did the Delegates Count Slaves as Three-Fifths of a Person?

Nationalist James Wilson articulated the paradox facing the delegates over the issue of slavery and how it affected the current debate over the nature of the government. Were enslaved people citizens? If so, then why not count them towards state population counts? Or were they property? If so, then why were other forms of property not figured into the equation for determining taxation?

The delegates began to see their way clear once they tethered representation to taxation: direct taxes would be in proportion to representation.

But William Davie of North Carolina saw a conspiracy to ensure slave holding states would not be able to count any of their slave populations towards representation at the convention. It was “high time to speak out now,” he said. North Carolina would never agree to any terms of confederation unless black populations were counted at least by a ratio of at least 3/5ths. If black populations were going to be excluded altogether, “the business was at an end.” Many delegates balked at the the 3/5ths ratio. Morris answered Davie’s challenge by pointing out the voluntary nature of the compact the states would be entering. Morris summed up his position like this — he would have to offend either the Southern states or human nature himself, and given that choice, he would offend the Southern states.

The delegates approved (6-2-2) the 3/5ths ratio, settling that question, though pointed exchanges about slavery would continue. The arguments may have been nuanced, emotional, and even explosive, but reason for them was simple: Representation in Congress meant power. And part of that power might have been brought to bear against slavery itself. Had the 3/5ths clause, as it has become known, not been ratified, what might have been the alternative? If the less populous slave states had been able to count their entire slave populations towards representation, that would have meant much greater power in Congress for the South. If they had been able to count none of their slave populations, perhaps there would have been no Constitution.

Connecticut Compromise

Similar types of arguments surfaced in debates over representation in the national legislature: would states be represented (in other words, would the confederation still be a confederacy?) or would the people (establishing a national government that drew its power from and acted on individuals)?

Madison, architect of the Virginia Plan and still a promoter of a national system, argued against the idea that the government could be partly national and partly federal. When, he asked, would the central government be called upon to act in a way that did not impact individuals? “In all cases where the general government is to act on the people, let the people be represented and the votes be proportional. In all cases where the government is to act on the States as such, in like manner as Congress now act on them, let the States be represented and the votes be equal.”

After the weekend break, the delegates returned to approve (5 – 4 – 1) the Gerry Committee Report. Representation in the House of Representatives would be proportional and based on population; Senate representation would be equal for each State, and money bills would originate in the House and be un-amendable in the Senate. This is also known as the Connecticut Compromise, and is seen by many as a significant turning point in the Convention.

Philadelphia -

The eleventh anniversary of independence saw the Convention at an impasse. The delegates could not agree on the question of how to structure a legislative body for the union – because all knew this decision raised the question of whether they should merely strengthen the confederation, or create a new national government in its place.

The July 3-4 adjournment for Independence Day gave many delegates a respite from wearying debate. For eleven members of the committee chaired by Massachusetts’s Elbridge Gerry, however, debate continued, as they met on July 3 to discuss a practical solution to the issues that the Convention was struggling to solve. On July 4, delegates congregated at Philadelphia’s Race Street Church to hear a speech commemorating independence. On July 5, the fireworks resumed.

The Gerry Committee Report

When the Convention resumed its business on Thursday morning, July 5, the Gerry Committee was prepared with a report. The Committee, which consisted of one delegate from each of the eleven states represented at the Convention, was asked to handle the sensitive issue of representation in a union that some still view as federal but others are trying to make national. Elbridge Gerry (who had signed the Declaration of Independence in this same city eleven years ago) rose to explain the report to the Convention. The report had three parts, which gave form to the view that had been developing of a union partly national and partly federal:

1. The first branch of legislature will be elected by population (as the large states had called for) with states being apportioned one member for every 40,000 inhabitants.
2. All bills that raise and appropriate money will originate in the First House and shall not be amended by the Second House
3. In the second branch of the legislature each state will be represented equally.

Debate in the Assembly and in Committee

Gerry admitted to the Convention, after presenting the report, that it was a very thin compromise, and that Committee delegates “agreed to the Report merely in order that some ground of accommodation might be proposed”. None of the Committee members, he continued, was “under any obligation to support the Report”.

Nor were some of the Convention’s leading delegates inclined to support the Gerry Committee’s suggested compromise. Mr. Madison seems to have viewed the compromise as a crippling blow to the Virginia Plan, which had been designed to combat what Madison saw as the vices of the political system under the Articles of Confederation. He rose and in a long speech proclaimed his fear that “the Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U. S.” on the one hand, or of “displeasing these by justly gratifying the larger States and the majority of the people” on the other.

He then made the issue personal, recalling a statement made by Mr. Bedford (of Delaware) prior to the adjournment for Independence Day. Bedford, chafing against the nationalists’ plan, had challenged, “We have been told with a dictatorial air that this is the last moment for a fair trial in favor of a good Government. It will be the last indeed if the propositions reported from the Committee go forth to the people.” Bedford seemingly taunted the large states, saying that they “dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” Though Bedford qualified that “He did not mean by this to intimidate or alarm,” Madison responded to that comment as if it were a threat, stopping just short of calling Bedford a turncoat, and hinting that the large states might just challenge stubborn states like Delaware to choose between joining the union and courting some foreign ally. Madison lectured, “if the principal States comprehending a majority of the people of the U. S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States would by degrees accede to it.”

Other nationalists joined Madison’s offensive against the compromise. James Wilson charged that the Committee exceeded its powers (a charge that seems ironic, given Wilson’s support of the Virginia Plan, which many thought exceeded the Convention’s mandate of simply revising the Articles of Confederation). Gouverneur Morris thundered against those who acted as if “we were assembled to truck and bargain for our particular States” and warned “This Country must be united. If persuasion does not unite it, the sword will.”

Perhaps sensing a concerted effort on the part of the nationalists to paint him as disloyal to the Confederation, Mr. Bedford, rose to state he had been misunderstood, and had no intention that Delaware or other small states should seek protection outside of the union. But others were not cowed by the bluster of the nationalists. Several delegates rose to offer support of the Gerry Committee’s report, or at least to a hearing of the report. None was more forceful in defense of giving the Gerry Committee report a hearing than George Mason. The surly Virginian was growing impatient, and cautioned quarrelsome colleagues that “the Report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation.”  But Mason was not about to finish there, proclaiming that “he would bury his bones in this City rather than expose his Country to the Consequences of a dissolution of the Convention without any thing being done.”

Mason’s stern words led directly to consideration of the provisions of the Gerry Committee’s report.

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

Philadelphia –

Well over a month into the convention, the delegates are still at odds over how to settle the question of representation in the new government. All believed that the answer to this question would determine whether the states would continue as distinct political societies, or whether the new national government would form one political society.

The notion of a national government had gained enough support that the delegations accepted a national legislature that would represent citizens, not states. For some, like Luther Martin, the Convention’s movement to this point appeared to have made an old world disappear. He “remarked that the language of the states being sovereign and independent, was once familiar and understood; though it seemed now so strange and obscure.” Others, like Madison, feared that the continuing attachment of some delegates to the sovereignty of the states would lead the states to perpetual war against one another.

Oliver Ellsworth, of Connecticut, however, “did not despair. He still trusted that some good plan of government would be devised and adopted.” Declaring that “we were partly national; partly federal,” Ellsworth pushed the need for compromise. He proposed that if the lower house of the national legislature is elected on the “national principle,” the upper house should be elected on the “federal principle”. Madison reports, “He trusted that on this middle ground a compromise would take place. He did not see that it could on any other. And if no compromise should take place, our meeting would not only be in vain but worse than in vain.”

The following day saw even more division among the delegates. Madison and James Wilson argued against this compromise, challenging that it would allow a minority to overrule a majority. Madison even went so far in defense of proportional representation as to propose that one house draw its representatives on the basis of all free inhabitants, and the other on the basis of free inhabitants plus slaves. Some defenders of state sovereignty actually called for the Convention to inform the governor of New Hampshire to send its delegates (who were not present) to help defend the interests of small states.

Help for the resolution came from an unexpected place. North Carolina delegate William Davie – who had yet to speak up during the Convention’s proceedings – agreed with Ellsworth, stating, “We were partly federal, partly national in our Union, and he did not see why the Govt. might (not) in some respects operate on the states, in others on the people.” James Wilson warmed to the idea, then Dr. Franklin offered warm words in support of compromise, then Madison indicated he might be open. There were dissenters on both sides, but at the end of the week, Saturday June 30, the makings of a compromise were there.

Davie’s support for Ellsworth’s compromise helped bring the issue to a vote. On July 2^nd the resolution was defeated in a 5-5-1 tie. Roger Sherman, seeing the delegations equally divided, complained, “We are now at a full stop.” But he challenged his fellow delegates not to give up, and suggested giving this complicated question over to a committee to solve. The delegations agreed, and appointed one delegate from each of the eleven states represented in the Convention. Led the Elbridge Gerry, the Committee would spend the next several days debating the fate of state representation in the new government. With that, the Convention adjourned, leaving the delegates a chance to escape debate and celebrate the eleventh anniversary of independence on July 4.

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