Miracle at Philadelphia
by
Catherine D. Bowen

Part II: Compromises and Accommodations that Made the Nation

Page Contents

Northwest Ordinance

The Great Compromise

Committee on Detail

The Slavery Compromise

Committee on Style and Arrangements 

The Bill of Rights

Signing the Constitution

 

Ratification

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The Northwest Ordinance:

  The Northwest Ordinance was passed by the Confederation Congress in July, 1787, setting forth the political framework for the settlement of the vast northern segment of the Western Territories.
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A strong opposition arose against equality of terms for new states.

  Urged by land speculators on behalf of their land companies for the purpose of encouraging migration, the terms were liberal - but not as liberal as the Ordinance of 1784 drafted by Jefferson.

  "The Northwest Ordinance provided that the entire Territory was to be ruled at first by a governor, a secretary and three judges, named by Congress. In the whole region of six and a half million square miles, not less than three nor more than five states were to be created. When in any given region the population reached five thousand free male inhabitants, a legislature could be elected and a nonvoting delegate sent to Congress. As soon as one of the five states attained a population of sixty thousand free inhabitants it could be admitted to the Union and write its own constitution. Slavery was prohibited [something that Jefferson had failed to get included in the 1784 Ordinance]; a bill of rights guaranteed freedom of worship, habeas corpus, trial by jury, and security of contracts [something dearly desired by the land companies]. 'Schools and means of education shall ever be encouraged,' said Article III. There was a property qualification: voters must own fifty acres, legislators two hundred acres. There was also a clause that became famous more for the breach than the observance: 'The utmost good faith shall always be observed towards the Indians.'"

  Some historians consider the Northwest Ordinance a third founding document for the nation along with the Declaration of Independence and the Constitution. However, it was touch and go as to how this document would be reflected in the proposed Constitution.
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  All manner of parochial fears and vested interests were threatened by the rapidly approaching time when large numbers of new and increasingly populous states with different interests would come into the Union. These fears were reflected among the Convention delegates. A strong opposition arose against equality of terms for new states.
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  The Massachusetts delegation was opposed to admission of western states on equal terms. Gerry insisted that they must be limited so that their number never be greater than the eastern states, lest they "drain our wealth into the Western country." Sherman (Conn.) countered that "we are providing for our posterity, for our children and grandchildren" many of whom would be moving west. They should not face such discrimination. Gerry's motion lost narrowly, 5 states-to-4.
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  Gouverneur Morris (Pa.) warned presciently that the west had different interests than the east, and would involve the nation in a war with Spain. Navigation on the Mississippi River was one of their primary concerns. He advised a suffrage based on property to reduce the eventual political weight of the western states. Several delegates supported this view. For the rest of his life, Morris remained adamantly opposed to equality of terms for new states.
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Such jealousy, Wilson warned, had led England to try to place limits on Colonial growth, only to lose the Colonies. The same result would surely follow with respect to the west.

 

The continued applicability of the principles of the Northwest Ordinance assured the loyalty of the newly created western states - all the way to California.

  Equal terms for admission of new states was supported by Virginia delegates Madison, Mason and Randolph, with Sherman (Conn.) and Wilson (Pa.). Randolph reminded the delegates that this was a matter for the Confederation Congress, and that the Ordinance of 1784 had already provided for admission of new states on a basis of equality.
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  Wilson advised maintenance of republican principles and acceptance of majority rule. "If the interior country should acquire this majority, they will not only have the right, but will avail themselves of it whether we will or no." Such jealousy, he warned, had led England to try to place limits on Colonial growth, only to lose the Colonies. The same result would surely follow with respect to the west. Madison and Mason firmly supported these views.
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  This fear of loss of the western territories
was very real. Washington's correspondence acknowledges that matters in the west balanced precariously. There were schemes afoot for setting up separate political entities, for making deals with Spain. England still looked for opportunities to make trouble in the Northwest Territories. (It was easier - as a matter of communications and transportation - to rule the colonies from London than to rule the Ohio Territory from Philadelphia.)
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  This dispute lasted all summer. It was not settled until the meetings of the Committee on Details. Article IV assured equal privileges and immunities for citizens of all states - assured that new states would not be carved out of existing states without the latter's consent - and simply left to Congress the authority to make "all needful Rules and Regulations" respecting the territories. This assured the continued applicability of the principles of the Northwest Ordinance and the loyalty of the newly created western states - all the way to California.
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The Great Compromise:

 

"[Withou] the Great Compromise it is hard to see how the Federal Convention could have proceeded further."

  On July 16, 1787, the Great Compromise was approved. Each state would have two members in the Senate, thus offsetting the advantage that the big states gained by proportional representation in the House. Bowen speculates that a temporary break of the heat wave may have played some role in the breaking of the impasse.

  "There are critics today who think the Convention erred, and that the Senate, like the House, should have remained proportional. Yet without the Great Compromise it is hard to see how the Federal Convention could have proceeded further; - - -."

  The small state delegates were jubilant with their great victory, and became much more willing to compromise on other matters. Several became stalwart supporters of the Constitution. Optimism for a favorable outcome to the Convention soared.

  This was not the only favorable compromise won by the small states. The electoral weight of the smallest states was doubled and even tripled in the electoral college by calculating the number of electors for each state on the basis of the number of their Senators as well as their Representatives. Moreover, approval of treaties and the most important Presidential appointments was placed in the Senate where the small states had their greatest strength. Senate filibuster provisions and Senatorial courtesy practices would further add to their influence.
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  Bowen is thus a bit too sanguine on this point. This has not been without cost. The results can be seen today in the destructive practice of providing protection for sugar plantations (hardly a strategic national industry) - and massive subsidies to wealthy agribusinesses - and all manner of "earmarks" for "bridges to nowhere." However, only idealistic fools and ideologues dream of perfection in political governance.

  Bowen examines the letters and records left by the participants and convincingly concludes that this issue of representation - not the relative strength of state and national government - was the most critical question that had to be resolved by the Convention.
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The President:

  The dispute over the powers of the national government and its chief executive officer are covered at some length by Bowen.
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"Electors" chosen by the states according to state laws was the method agreed upon - after 60 ballots - for the selection of the President.

  The charge of "monarchy" was used loosely against those favoring a strong national government and chief executive. This charge would continue as a central feature of the increasingly perfervid partisan politics of the first two decades of the new government. There were many who believed that a strong executive must at some time inevitably abuse his powers to give himself life tenure and then arrange for the succession of his children. (In nations around the world we have in fact seen similar abuse of executive power in the absence of anything like the sophisticated checks and balances of the American system.)
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  "Electors" chosen by the states according to state laws was the method agreed upon - after 60 ballots - for the selection of the President. At various times, the Convention approved and then rejected congressional appointment and election by state legislators. (This crafty compromise left each state free to determine how it would participate in the presidential selection process - and left to public pressure the task of assuring that in each state a public electoral process would be chosen.)
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  Other questions also required multiple ballots. Should the President be subject to impeachment? Any official subject to impeachment could not be considered a monarch.
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  How long should the term of office be - and how many terms should be permitted? This question would again arise during the ratification debates.
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  That Washington would be the first President and was considered totally trustworthy was credited by some as allaying some of the fears about the Presidency. Nevertheless, rumors were widely circulating outside the Convention of schemes both within and outside the Convention to establish a King to rule in America.
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The Committee on Detail:

  A small committee called the Committee on Detail was appointed on Thursday, July 26, 1787, to set the "resolves, suggestions, amendments and propositions" agreed to into a workable arrangement for a constitution.
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"[The] construction of a constitution of necessity differs from that of law."

 

This document is not about the natural rights of men. It is "the constitution and fundamentals of government for the United States."

 

The Convention now had "a clear design for a government of enumerated powers, bold, 'national,' and directed at the people as individuals rather than the states as corporate bodies."

  The five members were Randolph (Va.), Wilson (Pa.), Gorham (Mass.), Ellsworth (Conn.), and Rutledge (S.C.). They were given 11 days to prepare a "report" on the 23 Resolutions already passed - in essence, the Virginia Plan once more amended. Then, the Convention adjourned until August 6, and the delegates scattered. Washington went fishing.
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  Randolph was a fortunate choice. He had given considerable thought to the writing of constitutions, and his notes on the subject have survived. Bowen notes that he proceeded "with extreme simplicity toward a complex and vastly important end."

  "First of all, he says, only essential principles should be inserted, lest government be clogged by permanent, unalterable provisions which ought to be shaped to later times and events. Simple, precise language should be used and none but general propositions stated; 'for the construction of a constitution of necessity differs from that of law.'"

  This document is not about the natural rights of men. It is "the constitution and fundamentals of government for the United States." Thus, Bowen notes concerning Randolph's views on the preamble:

  "The object of [the] preamble ought to be 'briefly to declare that the present foederal government is insufficient to the general happiness, that the conviction of this fact gave birth to this convention, and that the only effectual means which they can devise for curing this insufficiency is the establishment of a supreme legislative, executive and judiciary - - -.'"

  Models available for reference by the committee included the Virginia Plan and competing plans, the Articles of Confederation and the state constitutions. The colonial settlers had been gathering together to write out and agree to bodies of fundamental law since 1635. There was "a long tradition of written corporations, covenants, charters, compacts, from the Massachusetts Body of Liberties and the Fundamental Orders of Connecticut down through Franklin's Plan of Union in 1754, Galloway's Plan in 1774 and the Articles of Confederation," not all of which, of course, had been successful.
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  Divided into articles and sections and printed, the Convention now had "a clear design for a government of enumerated powers, bold, 'national,' and directed at the people as individuals rather than the states as corporate bodies."
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  This served to concentrate minds - and arouse existing fears. Anything could be reconsidered and subjected to another vote. There would be five more weeks of intensive debate.
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The slavery compromise:

 

 

 

 

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  Federal jurisdiction over interstate commerce and navigation and its power to collect taxes and imposts was challenged by the Maryland delegation. James M. McHenry (Md.) expressed fears about subjection of southern agricultural exports to regulation based on large state interests. 

  Section 9 of Article I would forbid any tax or duty on exports. But the agricultural states and regions would indeed come out on the short end of the stick with respect to national tariffs.

The compromise ultimately adopted was the 5-to-3 "federal ratio" for including slaves in the calculation for representation in the House - in return for Congressional authority from the beginning of 1808 to ban the importation of slaves.

  However, the commerce in slaves became the focus of the debate over the regulation of commerce. All the delegates knew that slavery was another issue that they absolutely had to reach a compromise on to save the Union and adopt a new constitution.
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  The compromise ultimately adopted required two-thirds supermajority votes by both houses for navigation laws (ultimately replaced by a provision specifically forbidding interstate preferences, passport duties and state tariffs), a maximum $10 per head import tax on slaves, the 5-to-3 "federal ratio" for including slaves in the calculation for representation in the House - five slaves counted as three free white inhabitants - in return for Congressional authority from the beginning of 1808 to ban the importation of slaves.
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  The commerce in slaves is thus covered by specific provisions - which never use the word "slaves" - referring generally to "The Migration or Importation of Persons." Thus, the enumerated power to otherwise regulate international and interstate commerce could be set forth without qualification. After the beginning of 1808, Congress would have constitutional authority to regulate interstate commerce in slaves - but it would take a Civil War to clear the way for the exercise of that authority.
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Southern state constituents would never agree to any constitution - or join any union - that abolished slavery.

 

Slavery was attacked on moral grounds and because of the way it impoverished free working men.

  Slaveholder interests were defended by South Carolina delegates John Rutledge, Charles Pinckney, and Gen. Charles Cotesworth Pinckney on the basis of a blunt assertion of slaveholder interest - the oft-repeated myth that, left alone, slavery would die out of its own, as it had in Massachusetts and as seemed likely in Connecticut - and that slavery was a natural element in human society since and even prior to ancient historical times. They affirmed that their constituents would never agree to any constitution - or join any union - that abolished slavery.
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  Slavery was attacked
by Gouverneur Morris (Pa.) and George Mason (Va.) on moral grounds and because of the way it impoverished free working men. Gouverneur Morris proclaimed slavery a "nefarious institution, the curse of heaven on the states where it prevailed" spreading poverty broadly through society. Mason - the owner of a magnificent plantation and about 200 slaves - nevertheless deplored "this infernal traffic" that produces "the most pernicious effect on manners."

  "Every master of slaves is born a petty tyrant; they bring the judgment of heaven on a country. - - - Slavery discourages arts and manufactures. The poor despise labor  when they see it performed by slaves. - - - The Western people are already calling out for slaves if they can be got through South Carolina and Georgia."

  The Constitution would succeed in transferring the question of slavery from local to central authority - from state to Congress. The Convention was not a legislative body, Bowen points out. It had to create a constitution for the nation as it found it. To attempt more would have disrupted the Convention and destroyed the Union. "The time was not yet come," nor would it ever come without military conflict.

  It is today politically correct for guilt-ridden intellectuals to view these events as a source of great shame for modern Western culture in general and the United States in particular. In reality, they are a source of great pride.
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  Slavery in many guises had been a pervasive reality for millennia, as the South Carolina delegates emphasized. It was ONLY modern Western philosophy that developed an effective challenge to the practices of slavery - whether racial, ethnic or feudal. It was ONLY in Western nations that an effective struggle to limit slavery was mounted. It was ONLY the United States that had to fight an immensely bloody war first to maintain those limits and then to end slavery. ONLY the British Navy - with minor but useful assistance from the U.S. Navy - brought the worldwide commerce in slaves to an end.
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  The end of slavery and the ideal of equal treatment of minority ethnic and racial groups is a triumph of modern Western culture. If it had been left up to the dominant cultures of Asia and the Middle East, slavery would have continued for another century - and might even still be with us in those regions. Most other regionally dominant cultures have been - or are still being - often reluctantly dragged by Western influence towards acceptance of  the ideal of equal treatment under law. Many nations still have a long way to go. See, Chua, "World on Fire."

  Indeed, in some nations in black Africa, slavery is still practiced.
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  Enlightenment does not come quickly, nor does it immediately spread universally. In the West - as elsewhere around the globe - many grieved over their loss of privileged status and sought to hold on to those privileges as long as possible. Many still do. We can see this today in the Sunni insurgency in Iraq, and the intransigence of Israeli West Bank and Gaza Strip settlers in the Holy Land. Communist and socialist despotisms extended the feudal suppression of peoples through the 20th century. This continues today in North Korea.
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  What is indisputable is that - while it lasted - the Western enslavement of Black Africans and European feudal repression during the era of Western imperialism was an industrial strength version of slavery - both in the vastness of the numbers involved and the harshness of the conditions frequently imposed. Even much worse was the Communist version in the Soviet Union, China under Mao, and today in North Korea. This was the darkness before the dawn - and it did not really end until the collapse of the Soviet Union - the last of the great Western Empires.

The final details:

  The Convention was again mired in contentious disputes over the final details as the summer heat wave returned.

Many delegates to the Convention were foreign born.

 

Ultimately, they decided against religious tests for officeholders and required only an oath to support the United States Constitution.

 

Treason charges were at that time still being used in many states against alleged loyalists, and their properties were subject to confiscation in blatant violation of the terms of the Paris Peace Treaty.

  • How long must a man be a citizen to qualify for Congress?

  The Committee of Detail had inserted 4 years for Senators and 3 years for representatives, but there was disagreement among the delegates. Bowen goes at some length into their varying positions and arguments. Franklin and Madison were willing to leave it to the individual houses of Congress - Gouverneur Morris favored 14 years - with many delegates favoring periods in between. Many delegates to the Convention were foreign born - including Hamilton and three from Pennsylvania - Robert Morris, Thomas Fitzsimmons and James Wilson.
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  Numerous votes were taken - for periods ranging from 4 years to 9. Ultimately, the figures were set at 7 years for representatives, 9 for senators. The President would have to be native born.

  • Where would the national capital be? Clearly, the new government would need a fixed capital district of some size.

  This would be a very contentious issue outside the Convention and during the ratification period. Opponents raised fears of a kingly President ruling like a monarch over a potentially lawless federal district. Even after ratification, its location remained contentious, with New York, Pennsylvania and Virginia vying for the prize. Ultimately, it was left to Congress, which was granted power to "exercise exclusive legislation" within a capital District not to exceed ten miles square.

  • Serious religious questions were inevitable at that time.

  Bowen goes at some length into the gloriously mixed religious environment of the nation - the level of tolerance that had developed - some of the state provisions - and the varying views of the delegates. Ultimately, they decided against religious tests for officeholders and required only an oath to support the United States Constitution. During the ratification period, opponents would blast the godless Constitution.

  • How shall the national government defend itself and the nation against treasonous acts, insurrections and foreign attack?

  This question went to the very heart of the dispute over the need for and risks of creating a strong national government. Treason had notoriously been defined broadly and used as a tool of oppression. Indeed, treason charges were at that time still being used in many states against alleged loyalists, and their properties were subject to confiscation in blatant violation of the terms of the Paris Peace Treaty. Many who favored broad application of treason charges under state law feared it under national law.
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  Ultimately, the Convention approved a narrow specific provision based on charges of "levying war against the United States" or "adhering to their Enemies, giving them aid or comfort" - and carefully limited as to penalties so as to apply only to the treasonous party and not his family or descendants.

  • The Convention also approved the broad obligation to "insure domestic Tranquility, provide for the common defense,  - - -." The opposition to a strong national government - and the even stronger opposition to a national government with military strength - was thus overcome.

Ratification procedure:

  Eleven of the original 55 delegates had left the Convention by the end of August - some for personal reasons and some in opposition to the course of the proceeding. Patience was running thin - some tempers were getting short.
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  How many states would be sufficient for ratification and establishment of the new government for the ratifying states? Amendments to the Articles required unanimous approval - and that was all the Convention was authorized to be doing. However, Rhode Island was certain to reject the new Constitution, and New York and Maryland also were expected to reject it. But setting a lesser number than 13 would be an admission that the Convention had exceeded its authority - something that would be used against the Constitution during the ratification debates.
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  Wilson (Pa.) tried for the easiest possible number - 7 - a bare majority. When this didn't fly, he raised the figure to 8. Then Pierce Butler (S.C.) supported 9. One or two states should not be permitted to hold the vital interests of the rest hostage. Daniel Carroll (Md.) urged 13. A Confederation unanimously adopted should not be dissolved without unanimity, he argued. The next day, the number 9 was adopted - only Madison voting against it.
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Opposition would be strongest among established politicians whose positions would be weakened under the new government. Various narrow political interests would be served by delay.

  Submission of the Constitution for ratification by state legislatures was something that obviously had to be avoided. Opposition would be strongest among established politicians whose positions would be weakened under the new government. Various narrow political interests would be served by delay. Madison (Va.) and Mason (Va.) supported submission to conventions of the people as essential to demonstrate that the new government was authorized by the source of all sovereignty and legitimate power - the people. Ratification by popular convention was approved 9-to-1.

  "I consider," Madison said, "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."

  However, the debate raged on. The opposition moved for submission of the whole matter of the Constitution to a second convention - which would surely mean failure for the effort. They moved for postponement to prepare to reconsider various points. The motions were rejected.
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Amendments to the Constitution:

  How should the Constitution be amended? If 9 out of 13 states could dissolve the old compact, 6 out of 9 could dissolve the new. Should ratifying conventions be free to propose amendments?
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  Yet again, objections and doubts to various parts of the Constitution were raised. The debate led to a dangerous motion by two influential delegates - Randolph (Va.), seconded by Franklin (Pa.) - in favor of a complicated ratifying process involving the Confederation Congress, state legislatures, state ratifying conventions, and then return to a subsequent general convention. A stalwart supporter of the Virginia Plan early in the Convention, Randolph was now moving into opposition.
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  Mason - always a stalwart opponent of a strong national government - nevertheless continued to play a constructive role in the Convention. He maneuvered to end the debate without a vote on this disastrous motion. He urged letting it lie on the table for a couple of days. Charles Pinckney (S.C.) then moved for the appointment of a committee to write a proper address to the people to accompany the Constitution. This was approved, and Madison wrote "Adjourned" in his journal.
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The Committee on Style and Arrangement

 

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  The style and final arrangement of articles in the Constitution was placed a few days later in the hands of the Committee on Style and Arrangement. Chosen by ballot for this committee were William Samuel Johnson (Conn.), Alexander Hamilton (N.Y.), James Madison (Va.), Gouverneur Morris (Pa.), and Rufus King (Mass.). Again, the choice for an important committee assignment proved most fortunate.
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Gouverneur Morris, a writing stylist, was chosen secretary of the committee - and is primarily responsible for the classic style of the Constitution.

  All these delegates favored a strong national government.

  • Dr. Johnson, Pres. of Columbia College, was chosen Chairman. He was universally esteemed - among southern delegates as among those from the northern states.
  • Hamilton, while back in New York, had already begun his campaign against Governor Clinton and the other New York opponents of the Constitution. Hamilton believed, and said so, that America could be "both free and powerful."
  • The tall, sophisticated wooden legged Gouverneur Morris had already addressed the Convention more often than any other delegate. He "had the courage to change his mind publicly when he saw himself in the wrong." A writing stylist, he was chosen secretary of the committee - and is primarily responsible for the classic style of the Constitution.
  • Rufus King initially regarded the Confederation Congress as the appropriate body for proposing alterations in the Confederacy. However, over the course of the Convention, he had changed his mind and now strongly supported the Constitution. He had a formidable reputation as a public speaker and was widely popular.
  • James Madison had perhaps the most profound grasp of the subject at hand. "His convictions were both deep and passionate," yet throughout the Convention he had displayed coolness and tenacity in pushing the procedure along acceptable lines. "For the rest of his life he would be explaining and expounding the new Constitution" - during the ratification process, while in Congress, as President, and in retirement.
  The controversy over ratification procedure was shrewdly finessed by removing it and the Article on initial implementation from the body of the Constitution. Instead, they were included at the end as two resolutions expressing the opinion of the Convention that ratification should be by conventions of delegates chosen by the people in each state, and suggesting  a procedure for implementation thereafter. The Constitution thus ends with Article VII establishing approval by 9 states as sufficient to establish the new Constitution and its government.
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Washington's signature was a badge of legitimacy.

 

The Washington letter addresses the main problem - judging the sacrifice of state sovereignty and individual liberty  required to assure that the government has the strength to preserve the rest.

  George Washington, as president of the Convention, signed the letter accompanying the Constitution, the Constitution itself and the two resolutions. His signature was a badge of legitimacy.
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   The letter, Bowen tells us, "breathes confidence in what the Convention had achieved, makes no apologies but tells with seriousness and humility just what such a convention of diverse states felt it could and could not do." It addresses the main problem - judging the sacrifice of state sovereignty and individual liberty  required to assure that the government has the strength to preserve the rest. Washington wrote:

  "The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was encreased by a difference among the several States as to their situation, extent, habits, and particular interests."

  The letter readily admits that fault can be found in the final result, but asserts "that it is liable to as few exceptions as could reasonably have been expected."
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This Constitution would be the work of the people of the United States, not of their political entities.

  Preambles attached to the Convention's 23 Resolves referred to each of the 13 states. However, it was not known which states might refuse to ratify. Morris finessed that problem by boldly producing something entirely new:
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  The Preamble began with "We the People
of the United States, - - -." This Constitution would be the work of the people of the United States, not of their political entities.
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  The delegates had no idea of the power of that phrase - to frighten the defenders of state's rights and inspire opposition to the absolute monarchs of Europe.
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  The rest of the Preamble was a masterpiece of draftsmanship.

  "- - -, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

  The breadth and vagueness of the terminology in the Preamble and in the Articles that followed it was intentional - a strategic acknowledgment that the document would have to accommodate numerous unknown circumstances in future years.

  This is a rare example of both wisdom and humility. The Constitution - a mere writing - could, in any event, only be as strong and effective as the American people and their political leaders would permit it to be.
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  The recent effort to devise a more rigorous governing charter for the European Union resulted in a monstrosity of great length and detail that was fortunately rejected by the European people.

This "Supremacy Clause" fundamentally changed the relationship of the states to the national government.

  Morris condensed 23 Articles into 7, with their proper sections. Article VI grandly provided: "This Constitution shall be the Supreme Law of the Land" - an ancient phrase taken from the Magna Carta (1215). "Later judicial decisions would label the various clauses - this would be 'the Supremacy Clause'" - and it fundamentally changed the relationship of the states to the national government.
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  Madison readily credited Morris with the classic style of the Constitution. Morris applied plain, common language to the finished document. The result would be a continuing source of justifiable pride for Morris. In a later letter, he wrote that "having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit."
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The Bill of Rights

 

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  The Convention then had one last crack at the Constitution. The supermajority in Congress for overcoming a presidential veto was reduced from three fourths to two thirds. The right to a jury trial in civil cases was debated.
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The Bills of Rights of the states had not been overturned. Congress had not been empowered to threaten them. It was thought foolish to attempt to list all the rights of man.

  The debate was quickly expanded to cover a Bill of Rights. Mason had drafted the Virginia Bill of Rights and moved to have one included in the Constitution. Eight of the state constitutions included a Bill of Rights. The concept went all the way back to the Magna Carta. Yet his motion was rejected 10-to-0.
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  The antifederalists would pounce on this omission. It would be their most effective argument during the ratification process.
 &
  However, nobody was against a Bill of Rights.
The Convention simply thought it unnecessary. The Bills of Rights of the states had not been overturned. Congress had not been empowered to threaten them. It was thought foolish to attempt to list all the rights of man. The Constitution was about the processes of government. It was not designed to include individual legal provisions. The Southern delegates bluntly objected to a Bill of Rights because of its obvious conflict with slavery.
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  Bowen goes at some length into this important controversy. She sums up:

  "The framers looked upon the Constitution as a bill of rights in itself; all its provisions were for a free people and a people responsible. Why, therefore, enumerate the things that Congress must not do?"

Adjournment:

 

&

  On Friday, September 14, 1787, some words in Article I were changed, and the Convention accepted the final Resolves in lieu of the last two Articles on ratification and implementation. Some further last minute changes to Article I were approved, but motions to encourage the construction of canals and establishment of a University were rejected.
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  There were further debates the next day, and some further changes in wording. There was some maneuvering to grant some states an additional representative. Randolph and Mason yet again expressed their qualms over the powers of the new government. Randolph moved that the state conventions be permitted to offer amendments to be taken up by a second general convention. Again, fears that, under a strong national government, tyranny and monarchy would eventually be established, were expressed.
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  Charles Pinckney (S.C.) acknowledged his own problems with some of the provisions of the Constitution, but explained the obvious impracticality of Randolph's motion. Gerry (Mass.) rose to express a long list of his own objections. The hour was late. The state delegations unanimously rejected Randolph's motion for a second convention. Then - as state delegations - they unanimously approved the Constitution as amended. New York was no longer represented by a delegation. Hamilton was the lone New York delegate still in attendance and voted as an individual delegate.

  "The Constitution was then ordered to be engrossed. And the House adjourned."

The Signing:

  The Constitution was signed on Monday, September 17, 1787, by 37 of the 55 delegates who at various times attended the Convention.
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 Franklin: "I consent, Sir, to this Constitution, because I expect no better and because I am not sure that it is not the best."

  Franklin then gave his classic commentary on the Constitution, acknowledging his own doubts about some of the provisions in the Constitution but expressing his acceptance of it as probably the best that could be achieved. Indeed, he expressed astonishment at how near to perfection it came.

  "I consent, Sir, to this Constitution, because I expect no better and because I am not sure that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they will die. - - -"

  He pleaded for unanimous support or at least "that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility -- and to make manifest our unanimity, put his name to this instrument." (See, Isaacson, "Benjamin Franklin," segment on "The Constitutional Convention," for more of this speech.)
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  Franklin then submitted a motion that the Constitution be signed "in Convention, by the unanimous consent of the States present." The motion had been devised by Gouverneur Morris, but was presented through Franklin to gain the advantage of Franklin's influence. It meant that the delegates were not individually committed to support the Constitution, thus making it easier for dissidents to sign.
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  Then there was yet another last minute proposal - to increase the initial rate of representation from one per 40,000 to one per 30,000 - an advantage for the larger states. Surprisingly, this was supported by Washington - his first and only known active role in the Convention. His influence was irresistible, and the motion passed.
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Hamilton described the choice in stark terms - as between a Constitution that might turn out well on the one hand and "anarchy and convulsion" on the other.

  Three men present refused to sign. However, these three men had all played constructive roles throughout the Convention.

  • Randolph (Va.) pointed out that his own radically different preferences were well known - but he pledged not to publicly oppose the Constitution. He was young, an ambitious politician and already governor of Virginia. Despite his important role and support for a strong national government early in the Convention, he apparently feared being associated with a Constitution that he thought would be unpopular. However, his support of the Constitution - with recommended amendments - would be a key to the narrow victory in the Virginia ratifying convention.
  • Gerry (Mass.) thought the ratification process would be disruptive and that the Constitution would be rejected. He would fail to gain election as a delegate to the Massachusetts ratifying convention, but his publication of his long list of objections would prove very influential and would put ratification in doubt.
  • Mason (Va.) wrote out a long list of his objections. He, like Jefferson, had always been ideologically opposed to a strong national government. However, he at this time refrained from expressing these objections. He realized that a strong majority had already made up its mind and was impatient to get the Convention over. He, too, like Jefferson, feared that the powers of the new national government would ultimately lead to tyranny or monarchy. He would be influential in opposition during the Virginia ratifying convention.

  Of those absent, four were known as opposed and nine were known as in favor of the Constitution. Hamilton described the choice in stark terms - as between a Constitution that might turn out well on the one hand and "anarchy and convulsion" on the other.
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  Then, all but three of the delegates present signed the Constitution, and the Convention was adjourned sine die.
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Ratification:

 

 

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  The Constitution was published in full by newspapers all across the country as soon as they got their hands on a copy. The people were just as surprised at the strength and novel shape of the new government as the delegates had been when Randolph first read them the 15 Resolves of the Virginia Plan. However, many of the provisions were similar to those in many of the state constitutions, and some of the delegates to the ratifying conventions had even been delegates at conventions for the state constitutions.
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Madison, Hamilton, and New York lawyer John Jay produced a series of analytical pseudonymous newspaper articles - signed by "Publius" - explaining and supporting the new Constitution. These would become known as the Federalist Papers.

  Heated, passionate public debate was immediately initiated. Madison, Hamilton, and New York lawyer John Jay produced a series of analytical pseudonymous newspaper articles - signed by "Publius" - explaining and supporting the new Constitution. These would become known as the Federalist Papers, and would be viewed thereafter by the courts as authoritative guides to the meanings of the Constitution's provisions. They provided reasoned arguments available for use by all the supporters of the Constitution.
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  However, the public debate would be driven by more fiery fare. All the rivalries of region, state, economic interest, and ideology came into play. Many of the firebrands of the Revolution blasted the Constitution with their usual rhetorical excesses.
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  Ten Convention delegates who were also members of the Confederation Congress hurried back to New York to help get the Constitution over that barrier. In just eight days, the Congress passed this hot potato on to the states with a bland recommendation for ratifying conventions. The Congress expressed neither support nor opposition.
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A substantial proportion of the citizenry was inclined to support the Constitution just on Washington's recommendation.

  The arguments of the Antifederalists are given considerable coverage by Bowen. Their arguments mirrored the objections raised during the Constitutional Convention and added other objections that varied from state to state. Politics in those days was a rough and tumble game. Rumors, innuendo and obvious lies were readily employed in the battle.
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   The leading Federalists countered
with arguments they had employed and tested during the Constitutional Convention. These arguments would prove encouragingly effective.

  "One cannot but admire [the patience of the people], the willingness of citizens to learn [and] ascertain the truth about this new government. Never had so educational a debate been sustained in America, though the shafts on both sides were bitter and often far from just."

  The newspapers across the nation were awash in articles and letters for and against the Constitution. From Mt. Vernon, Washington issued a stream of letters to leading Federalists and Anti-federalists alike. He influentially supported the Constitution in modest terms as "the best that could be obtained at this time." Washington's support was critical. A substantial proportion of the citizenry was inclined to support the Constitution just on his recommendation.
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Pennsylvania:

 

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  In a rowdy session held immediately after the Constitutional Convention adjourned, Franklin's forces in the Pennsylvania Assembly voted 45 to 2 in favor of holding a ratifying convention on November 21.
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A nation of free people was - remarkably - and without intervention of armies - in the process of changing its government.

  In an effort to destroy a quorum, nineteen opposition members had absented themselves. The quorum was established only when two of them were forcibly brought into the chamber. The merchants and tradesmen of Philadelphia understood the commercial necessity for a strong national government.
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  James Wilson soon thereafter made a masterful speech in the State House yard explaining and supporting the Constitution. He would repeatedly rise to answer all questions raised during the grueling days of the ratifying convention - and would be pilloried - even physically beaten up - for his efforts. He had some formidable help - and the Constitution was ratified by Pennsylvania 46-to-23 on December 12.
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  But Delaware had ratified first - unanimously - on December 6. New Jersey ratified unanimously on December 16 - Georgia on January 2, 1788. With hostile Indians throughout its hinterlands and Spanish territory in Florida just across its southern border, the need for a strong national government was obvious to sparsely populated Georgia. Then came Connecticut by a vote of 128-to-42, seeking some protection against its mighty neighbors, New York and Massachusetts.
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  A nation of free people was - remarkably - and without intervention of armies - in the process of changing its government. This was something even Jefferson could approve. John Adams was overjoyed.  And, Americans were feeling proud of their accomplishments.
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Massachusetts, New York and Virginia:

 The sharply contested conventions in Massachusetts, New York and Virginia are given considerable coverage by the author.
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The Federalists proposed to include recommendations for 9 amendments with the ratification of the Constitution.

  The Massachusetts convention involved 355 delegates. Among the provisions that drew the most heated objections were the power to tax, the ban on religious tests for high office, the lack of a Bill of Rights, and the authority to create a standing army.
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  The outcome was very much in doubt. The Federalists tried to ease fears by proposing to include recommendations for 9 amendments with the Massachusetts ratification of the Constitution. But these amendments were not a Bill of Rights. They were restrictions - on taxation and the granting of monopoly franchises and Federal regulation of elections. It was a brilliant stratagem, and ratification squeaked through 187-to-168.
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One opponent after another rose to affirm their opposition to the Constitution, but accepted the verdict of the ratifying convention as fairly fought and fairly won. They pledged to work in their home districts for acceptance of the new Constitution.

 

The debates were far from obstinate confrontations. The Federalist stalwarts responded to their impassioned critics with cool, reasoned replies - and repeatedly won converts among the opposition.

  Then, something extraordinary occurred. One opponent after another rose to affirm their opposition to the Constitution, but accepted the verdict of the majority of the ratifying convention as fairly fought and fairly won. They pledged to work in their home districts for acceptance of the new Constitution. They expressed the hope that their fears would turn out to be unfounded, and that the expected benefits would be realized.
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  Then, amidst ringing church bells, they all went out to engage in a bodacious celebration.
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  Bowen states that it is likely that, had Massachusetts rejected ratification, the Constitution would have failed to gain the required ratification of 9 states. Maryland ratified in April - but followed the example of Massachusetts by appending a desired 13 amendments. South Carolina ratified in May.
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  However, New Hampshire debated and adjourned without voting, leaving the total one short of the needed 9 ratifications. On June 21, just days before Virginia, Hew Hampshire met again and ratified 57-to-46.
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  The debates were far from obstinate confrontations. The Federalist stalwarts responded to their impassioned critics with cool, reasoned replies - and repeatedly won converts among the opposition.

  "Often enough, Antifederalists seemed relieved to confess they had changed their minds and that further information had calmed their fears and resolved their doubts."

The question was settled, Patrick Henry insisted. "[As] true and faithful republicans you had all better go home."

 

Washington: "[The opposition] has called forth, in [the Constitution's] defence, abilities which would not perhaps been otherwise exerted that have thrown new light upon the science of Government, they have given the rights of man a full and fair discussion, and explained them in so clear and forcible a manner, as cannot fail to make a lasting impression."

  In Virginia, the 170 delegates included the intellectual leaders and some of the leading rhetoricians of the nation - and 14 armed frontiersmen from the Kentucky territory who had ridden through Indian country to get to the ratifying convention. The Constitution was debated clause by clause with intellectual understanding and rhetorical skill. It was, Bowen says, the best of political theater, with the fate of the nation apparently hanging in the balance. The results in New Hampshire did not reach Virginia until after the vote in Virginia.
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  Again, the tide turned on desired amendments. John Randolph - the very popular governor of his state - decided to support ratification with appropriate amendments.  He had refused to sign the Constitution at the Constitutional Convention. Now, however, when challenged and insulted by Patrick Henry for his new change in position, he rallied as one of the strongest and most influential debaters in support of ratification.
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  The vote was 89-to-79 in favor of ratification - but with a recommended Declaration of Rights containing 20 articles and 20 amendments. These, too, did not amount to a Bill of Rights - but 10 of the articles were enacted by the first Congress. All the amendments were rejected.
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  Again, the immediate aftermath was remarkable.
Patrick Henry addressed a resistance meeting. He told them he had done all that he could for their cause, but had lost "in the proper place [the convention]." The question was settled, he insisted. "[As] true and faithful republicans you had all better go home."
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  Washington later wrote appreciatively of the constructive nature of the opposition.

  "On the whole, I doubt whether the opposition to the Constitution will not ultimately be productive of more good than evil; it has called forth, in its defence, abilities which would not perhaps been otherwise exerted that have thrown new light upon the science of Government, they have given the rights of man a full and fair discussion, and explained them in so clear and forcible a manner, as cannot fail to make a lasting impression."

Benjamin Rush: "Tis done. We are a nation."

  In New York, the opposition included the governor and the dominant political factions in the state. But ratification by Virginia had undermined their cause. Hamilton had been relentless and brilliant in his campaign for ratification. On July 26, New York ratified narrowly, 30-to-27, with a list of 32 desired amendments appended. Rhode Island and North Carolina would complete the ratification process at later dates.

  "As soon as a majority of nine was assured, state by state held joyful celebration, animosity for the moment forgotten. Perhaps this is endemic to America; once the vote is counted, everybody wants to be in the parade. There was rioting in Albany by Antifederalists, a public burning of the Constitution. Yet in New York City, ten horses had pulled the ship Hamilton through the streets -- a frigate of thirty-two guns, full rigged and manned with thirty seamen, 'every thing complete and in proportion,' [according to a contemporary account]."

  Bowen provides a complete account of the even bigger celebration and parade in Philadelphia. "Tis done. We are a nation," wrote the prominent Philadelphia doctor Benjamin Rush.
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  See, Bowen, "Miracle at Philadelphia," Part I, "Divisive Issues that Threatened the Union."

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  Copyright 2006 Dan Blatt