The Articles of Confederation provided inadequate funding and guidance for the thirteen colonies during the American Revolution. After six years of fighting, the war miraculously ended with victory in 1783. The Articles of Confederation did not give the new Congress of the Confederation adequate power to govern the newly created United States of America. Financial difficulties and turmoil soon plagued the country. The American colonies borrowed money from France, Spain and the Netherlands during the revolution. By 1786 the United States suspended payment of these loans.[1]
Most states tried to survive independently, guided by their state constitutions. Massachusetts imposed the heaviest taxes, demanding almost a third of one’s income which had to be paid in gold or silver. By 1786 many western Massachusetts farmers were unable to pay their taxes and faced loss of property and prison terms. Protesters in Massachusetts began shutting down local courts and called themselves Regulators, a term that had been used by the 1768 North Carolina Regulators. Daniel Shays, a militia captain and decorated member of the Continental Army, helped lead the Massachusetts Regulators. Ultimately, four thousand participants in Shays’ Rebellion tried to over throw the Massachusetts government. Benjamin Lincoln and William Shepard stopped the rebellion with the help of Massachusetts troops.[2]
After the war, George Washington experienced crop failures and substantial financial difficulties.[3] Reflecting on the events of 1786, Washington wrote, “I am mortified beyond expression whenever I view the clouds that have spread over the brightest morn that ever dawned upon any Country.”[4] “What a triumph for the advocates of despotism to find that we are incapable of governing ourselves,” he wrote.[5] Given the country’s unrest, Washington agreed to attend a meeting in Philadelphia to correct the faltering government.
Creating a functional government for thirteen different states stretching from New Hampshire to Georgia became a monumental task. What would prevent the government from becoming an onerous power like the one recently defeated? How would the government protect the rights of individual citizens and states? Smaller less populated states wanted representation equal to more populated states. Northern states opposed slavery which appeared crucial for the economic survival of Southern states.
James Madison and Alexander Hamilton believed the convention should create a new constitution rather than revise the Articles of Confederation passed by the Second Continental Congress in 1777 and ratified by the colonies in 1781. The Articles gave congress no authority to tax the states and could only be changed by unanimous agreement which was highly unlikely. A stronger central government was needed if the states were to remain united. Delegates from twelve states gathered in Philadelphia on May 25, 1787 for what was called the Federal Convention. Rhode Island opposed a change and did not participate.
Fifty five delegates, most of whom were selected by state legislatures, met “to form a more perfect Union.”[6] Senior members of the convention included Benjamin Franklin, eighty-one years old, from Pennsylvania and Roger Sherman, sixty-six years old, from Connecticut. Most other delegates were well educated, respected men in their thirties and early forties. Delegates agreed to keep the proceedings secret and met with windows closed during a hot summer in Philadelphia’s Independence Hall. Washington was elected president of the convention. James Madison, a former Continental Congress delegate from Virginia, had drafted a preliminary constitution. Madison was a thirty-six-year-old quiet, thin, five foot four inch intellectual. He was savvy in political maneuvering and kept meticulous notes of the proceedings. Madison’s Virginia Plan was introduced by Edmund Randolph from Virginia who later became Washington’s first attorney general. Madison’s plan envisioned dividing power into three distinct branches of government: legislative, judicial and executive. Each branch could check or limit the power of the other two branches and thereby maintain a proper balance of power.
Madison proposed two legislative bodies, both with the number of representatives based upon the state’s population, i.e., proportional representation. This issue soon paralyzed the convention. States with small populations insisted on representation similar to more populated states. Larger states financially contributed more to the country and believed they should have greater representation. They claimed that the Declaration of Independence declared all men, not all states, created equal. Oliver Ellsworth from Connecticut asked, “for whom are we forming a Government? Is it for men, or the imaginary beings called States?”[7] Larger states also questioned whether new states forming in the west should have representation. As heated debates persisted, smaller states threatened to leave the convention.[8]
On July 2, Roger Sherman addressed the delegates: “We are now at a full stop, and nobody . . . meant that we should break up without doing something.” Elbridge Gerry from Massachusetts warned, “If we do nothing . . . we must have war and confusion—for the old confederation would be at an end.”[9] Roger Sherman, aided by Oliver Ellsworth, proposed that one legislative body, the Senate, would have equal representation per state, and the House of Representatives would have proportional representation. A committee chaired by Elbridge Gerry added other concessions and proposed that the House of Representatives would have one delegate for every 40,000 people. This proposal became called the “Great Compromise” and rescued the convention from failure. On July 16, 1787, the proposal narrowly passed by a vote of five states to four. Delegates frequently missed sessions of the convention, which accounts for the missing votes.
Delegates then needed to determine with how members of the House and Senate would be elected. Previously, white male land owners elected colonial legislatures. Colonial legislatures then elected members of the Continental Congress, perhaps selecting more privileged educated men. Some delegates were concerned that a popular election, allowing all citizens to vote, would give excessive political power to the larger number of lower class citizens. James Madison admitted that “The man who is possessed of wealth, who lolls in his sofa or rolls in his carriage, cannot judge the wants or feelings of the day laborer. The government we mean to erect is intended to last for ages.” He argued that both classes need fair representation and stated that “landholders . . . ought to be so constituted as to protect the minority of the opulent against the majority.” Alexander Hamilton stated that “Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.”[10] Delegates finally decided that the people of each state would elect members of the House of Representatives. In contrast, state legislatures would determine the method of selecting Senate members and members of an electoral college which would select the president (in 1913, the Seventeenth Amendment required that the people of each state would elect Senators). Senators would have longer terms and be older than members of the House of Representatives.
Both Houses of Congress would be needed to approve a bill and the president could veto bills passed by Congress. The federal government had the ability to declare war, establish courts, levy taxes, regulate trade and create laws. The states had previously engaged in activities which were now forbidden such as printing money, imposing duties on imports and engaging in diplomacy. Delegates finally agreed that federal laws would have precedence over state laws, declaring, “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Furthermore, federal and state executives, judicial officers and legislative members “shall be bound by Oath or Affirmation, to support this Constitution.”[11] A Supreme Court was given final judicial power to uphold the Constitution and other United States laws and treaties.
For much of the convention, slavery was an unspoken issue that threatened creation of a constitution. Enslaved people accounted for 20 percent of the total population and over 90 percent of enslaved people lived in five Southern states.[12] The American Declaration of Independence declared that “all men are created equal.” Many Northern non-agrarian states opposed slavery. However, Southern agricultural states saw slaves as essential for economic survival. During the American Revolution, Vermont and New Hampshire declared slavery illegal in 1777 and 1779, respectively. Three years after the war, in 1784, Massachusetts, Pennsylvania and Connecticut made slavery illegal. New York and New Jersey had more enslaved people than other Northern states and defeated antislavery propositions. Virginia had more enslaved people than any state yet passed a law in 1782 allowing owners to free their slaves.[13]
The divisive issue of slavery surfaced in August 1787. Gouverneur Morris, a vocal opponent from Pennsylvania, stated that he would never support slavery because it was “a nefarious institution. It was the curse of heaven on the states where it prevailed.”[14] George Mason, a slave owner, admitted that “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country . . . [and] the Genl. Govt. should have power to prevent the increase of slavery.”[15] Two months before the American Declaration of Independence was written, Mason wrote the Virginia Declaration of Rights, proclaiming “That all Men are born equally free and independent, and have certain inherent natural Rights.”[16] Although Mason opposed slavery, he never freed his slaves, perhaps fearful of the economic impact of manumission. Upon his death, Mason bequeathed thirty-six enslaved people to his nine children.[17] South Carolina, Georgia and North Carolina delegates threatened to leave the convention if slavery was forbidden.
Compromises became necessary and Northern states eventually agreed that Congress could not ban “Migration or Importation of [enslaved] Persons” for twenty years, until 1808.[18] Interestingly, the constitution did not mention the word “slavery.” In exchange for the twenty year reprieve, Southern states reluctantly agreed that laws regulating commerce which were important for Northern states would require a simple majority rather than two thirds vote in Congress. In addition, Southern states wanted enslaved people counted to determine a state’s population and representation in Congress. Since enslaved people could not vote, Northerners maintained this would overly represent Southern states. In a compromise, delegates agreed that “three-fifths of all other Persons” or “those bound to Service for a Term of Years” would be counted to determine representation in Congress.[19] States would also be required to return escaped slaves to their owners. The Federal Convention followed Britain’s policy and did not attempt to deal with American Indians.[20]
In 1790, two years after the constitution was ratified, Quaker delegates in the House of Representatives raised the question of abolishing slavery. The issue could have destroyed the fragile union. James Madison terminated the discussion of slavery and sent the issue to a Congressional committee. The committee wrote a resolution that “The Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them . . . it remaining with the several States alone to provide any regulation therein, which humanity and true policy may require.” In other words, Congress would have no authority to deal with slavery. The House of Representatives passed this resolution by a vote of twenty-nine to twenty-five.[21] The House ruling became accepted as law; it was not approved by the Senate or sent to the President. Congress successfully enforced this decision until the problem exploded in 1861 with the Civil War and the death of 600,000 Americans.
During the final days of the Federal Convention, George Mason composed “Objections To This Constitution of Government.” Several weeks earlier he stated that “he would sooner chop off his right hand” than sign the constitution.[22] Mason was concerned about the government’s balance of power and predicted that “This government will set out [as] a moderate aristocracy . . . [and] in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy.” He suggested that a “second [Constitutional] Convention will know more of the sense of the people.”[23] Mason also proposed adding a “Declaration of Rights” to protect personal freedoms and state’s rights. He had written similar protections in the Virginia Declaration of Rights and most state constitutions contained a Bill of Rights. Convention delegates did not add these rights, as some felt they did not need to be specified. James Madison was not sure a Bill of Rights was necessary, writing in his notes, “Bill of Rights-useful-not essential.” [24]
John Rutledge of South Carolina led a Committee of Detail which included Edmund Randolph (Virginia), Oliver Ellsworth (Connecticut), James Wilson (Pennsylvania), and Nathaniel Gorham (Massachusetts). The committee wrote the first draft of the constitution which delegates received on August 6, 1787. After further deliberation, a Committee of Style and Arrangement composed the final version of the 4,500 word constitution. The later committee included James Madison (Virginia), Alexander Hamilton (New York), Gouverneur Morris (Pennsylvania), Rufus King (Massachusetts) and William Samuel Johnson (Connecticut). After three and one half months, on September 17 delegates heard the final version of the constitution and a speech written by Benjamin Franklin. Franklin confessed, “there are several parts of this constitution which I do not at present approve, but I am not sure I shall ever approve them. For having lived long, I have . . . [had] to change opinions on even important subjects which I once thought right.” Franklin supported the constitution, stating, “I am not sure that it is not the best.” As recorded by James Madison, Franklin encouraged delegates to “doubt a little of his own infallibility and—to make manifest our unanimity, put his name on this instrument.”[25] A majority of delegates from each state, but only thirty-nine of fifty-five total delegates, signed the United States Constitution on September 17, 1787. Edmund Randolph, who introduced the Virginia Plan, George Mason and Gouverneur Morris were members present that day who refused to sign. Thirteen other objecting delegates were absent, including Elbridge Gerry and Oliver Ellsworth. Madison’s notes state that Edmund Randolph admitted his decision not to sign the constitution “might be the most awful of his life, but it was dictated by his conscience.”[26]
Convention records state that “Whilst the last members were signing it Doctr. Franklin looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed . . . that Painters found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often . . . looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising not a setting sun.”[27]
Ratification
The constitution was submitted to the Confederation Congress then sent for ratification, which required approval by three fourths of the states. A Bill of Rights for individual freedoms and state’s rights became exceedingly important during state ratification debates. Many citizens remained concerned that the constitution would create an overly strong federal government. Samuel Adams and John Hancock in Massachusetts and Patrick Henry and George Mason in Virginia were prominent revolutionary leaders who shared these concerns and became anti-federalists.
Nine states were needed to approve the constitution for ratification. Within one month, by December 1787, five states approved. Massachusetts, Virginia and New York insisted on a Bill of Rights. By February 1788, Massachusetts approved pending a Bill of Rights and other states followed with approval pending a Bill of Rights. Nine months after submission, in June 1788, New Hampshire became the ninth state required for ratification and the constitution became law. Virginia approved in late June despite vigorous opposition led by Patrick Henry and George Mason, and New York approved in July 1788 with a narrow margin of three votes. North Carolina and Rhode Island were the only states refusing to approve the constitution. As dictated in the constitution, an Electoral College selected by state legislatures voted and unanimously elected George Washington president in April 1789.
Bill of Rights Ratification
Six states had approved the constitution pending a Bill of Rights. James Madison feared that having another constitutional convention to add these rights could derail the entire constitution and the country’s union. Therefore, Madison wrote a Bill of Rights which included guarantees of freedom of speech, religion and the press, the right to a speedy trial and a trial by jury. Madison also included the right to bear arms and protection from unreasonable searches, excessive bail, cruel and unusual punishment. Finally, powers not specifically mentioned or denied in the constitution would be delegated to the states or to the people.
Madison submitted the Bill of Rights to Congress for approval. Roger Sherman persuaded Congress to add the changes as separate amendments at the end of the constitution, rather than make changes to the original document.[28] Congress approved twelve articles as amendments and sent them to the states for final ratification in September 1789. North Carolina finally approved the constitution that November and Rhode Island followed in May 1790, finally creating a union of thirteen states.
Ratification of the Bill of Rights required approval by three fourths of the states. The Virginia legislature held extensive debates, with opposition led by Patrick Henry who in 1775 is said to have proclaimed “give me liberty or give me death.”[29] Henry had refused to even attend the Federal Convention. Since Virginia and other states approved the constitution pending a Bill of Rights, failure to pass the bill could derail the entire constitution. After debating for two years, Virginia became the last state needed to approve the articles of amendment. In December 1791, ten of twelve articles of amendment were approved as the Bill of Rights.[30]
Congress did not set a time limit for ratification of articles of amendment. One of the two unapproved articles stated that salaries for congressional delegates could only be changed after an election. This article was finally ratified as the 27th Amendment in 1992. The other unapproved article which set limits on the number of delegates in the House of Representatives is still pending.
After the states approved the amendments, Washington’s Secretary of State, Thomas Jefferson, sent a curious letter to state governors stating that laws regarding fisherman and post offices had been enacted. At the letter’s end, he mentioned ratification of “certain articles in addition to and amendment of the Constitution of the United States.”[31] Jefferson became an anti-federalist who opposed a strong federal government and supported state’s rights. During his presidency he weakened many of the federal programs created by Washington and John Adams.
In 1791, ten years after the British surrender at Yorktown and sixteen years after war broke out at Lexington and Concord, the United States achieved stability with a Constitution and a Bill of Rights creating a functional republican government. In his 1789 inaugural address, Washington acknowledged the “invisible hand” which created the nation and added that “the sacred fire of liberty, and the destiny of the Republican model of Government are . . . [an] experiment entrusted to the hands of the American people.”[32]
[1] Francis D. Cogliano, Revolutionary America, 1763-1815: A Political History (London and New York: Routledge, 2000), 111-114.
[2] Robert A. Gross, “A Yankee Rebellion? The Regulators, New England, and the New Nation,” The New England Quarterly 82, no.1 (March 2009):112-135; David P. Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection (Amherst: the University of Massachusetts Press, 1980), 91-119.
[3] Ron Chernow, Washington: A Life (New York: Penguin Books, 2010), 465-467, 478, 482-483.
[4] George Washington to Henry Lee, Jr., October 31, 1786,” founders.archives.gov/documents/Washington/04-04-02-0286.
[5] “George Washington letter to John Jay, 15 August 1786,” The Papers of George Washington, Confederation Series, ed. W. W. Abbot (Charlottesville: University Press of Virginia, 1995), 4: 212-213.
[6] Constitution of the United States, Preamble, www.archives.gov/founding- docs/constitution-transcript.
[7] “Madison, Saturday, June 30, 1787. in Convention,” The Records of the Federal Convention of 1787 (New Haven; Yale University Press, London: Henry Frowde Oxford University Press, 1911), 1:483.
[8] Edmund S. Morgan, The Birth of the Republic 1763-89 Revised Edition (Chicago and London: The University of Chicago Press, 1977), 135-139.
[9] “Yates, Monday July 2, 1787,” The Records of the Federal Convention, 1:511, 519.
[10] “Yates, Tuesday June 26, 1787,” ibid., 1:431,432.
[11] U. S. Constitution, Article VI, Paragraph 2, 3.
[12] United States Bureau of the Census, A Century of Population Growth: From the First Census of the United States to the Twelfth (Washington D.C.: Government Printing Office, 1909), 139, 132.
[13] Joseph J. Ellis, Foundng Brothers: The Revolutionary Generation (New York: Vintage Books, 2002), 89-90.
[14] “Madison, Wednesday August 8, 1787,” The Records of the Federal Convention, 2:221.
[15] “Madison, Wednesday August 22, 1787,” ibid., 2:370.
[16] “Final Draft of the Virginia Declaration of Rights, 12 June 1776,” in The Papers of George Mason, ed. Robert A. Rutland (Chapel Hill: University of North Carolina Press, 1970), 1:287-289.
[17] Jeff Broadwater, George Mason: Forgotten Founder (Chapel Hill: University of North Carolina Press, 2006), 193-194.
[18] U. S. Constitution, Article 1, Section 9, Paragraph 3.
[19] U. S. Constitution, Article 1, Section 2, Paragraph 3.
[20] Morgan, The Birth, 140-142.
[21] Ellis, Founding Brothers, 108-119.
[22] “Madison, Friday August 31, 1787,” The Records of the Federal Convention, 2:479.
[23] “Madison, Saturday September 15, 1787,” ibid., 2:637, 640, 632.
[24] James Madison, “Notes for Speech in Congress, [ca. 8 June] 1789,” in The Papers of James Madison, ed. Charles F. Hobson, and Robert A. Rutland (Charlottesville: University Press of Virginia, 1979), 12:193-195; Richard E. Labunski, James Madison and the Struggle for the Bill of Rights (New York: Oxford University Press, 2006), 192.
[25] “Madison, Monday September 17, 1787,” The Records of the Federal Convention, 2:641-643.
[26] “Madison, Monday September 17, 1787,” ibid., 2:646.
[27] “Madison, Monday September 17, 1787,” ibid., 2:648.
[28] Labunski, James Madison, 218-219.
[29] Thomas S. Kidd, Patrick Henry: First Among Patriots (New York: Basic Books, 2011), 97-99.
[30] Cogliano, Revolutionary America, 132-134.
[31] Thomas Jefferson, “Circular to the Governors of the States, 1 March 1792,”in The Papers of Thomas Jefferson, ed. John Catanzariti (Princeton: Princeton University Press, 1997), 27:815; Labunski, James Madison, 251-255.
[32] “Washington’s Inaugural Address of 1789,” Records of the U.S. Senate, Record Group 46, National Archives and Records Administration, www.archives.gov/exhibits/american_originals/inaugtxt.html.
One thought on “The Struggle for Stability: The 1787 Federal Convention”
Ms. Spiegel,
This is so beautifully done, IMHO, that I would love that it would be assigned as required reading & discussion throughout the nation’s schools in American History classes.