Episode 4.4 The Constitutional Convention

[Transcript]

Hello, and welcome to America’s First Ladies. I’m your host, Risa Weaver-Enion.

Episode 4.4 The Constitutional Convention

Well, here we are, about to embark on our second full episode with nary a mention of a First Lady in sight. It might seem strange to devote two full episodes to non-Dolley material, but the majority of episode 4.3 was necessary to provide context for today’s episode. And we are still being governed by the constitution that was written in 1787, so I think it’s worth an episode to talk about how this document came to be.

I’ve alluded to the various problems with the Articles of Confederation many times over the course of this podcast, but let me outline them more specifically now.

James wrote a paper titled Vices of the Political System of the United States. In it, he outlined how American government had progressed since the Declaration of Independence. It’s easier for me to quote Ralph Ketcham’s book James Madison: A Biography than it is to quote Madison directly here.

“The thirteen independent sovereignties had quarreled with each other, defied federal measures, and violated solemn international agreements. Imperative national measures, such as internal improvements and regulation of commerce, were thwarted by the perverseness of particular states. The states, as Shays’s Rebellion showed, were, without federal help, prey to internal violence and subversion. Furthermore, numerous confusing and unstable statutes passed by the states brought all law into dispute.

The root evil, though, was the overwhelming tendency of the existing governments, obsessed with their selfish interests, to lose sight of the general welfare and the need for disciplined respect for law.”

James was far from alone in recognizing these defects and wanting to do something about it. Alexander Hamilton lamented the lack of (1) a federal judiciary, (2) an executive at the head of government, (3) a federal taxing power, and (4) more direct control by a central government over the citizens of the various states. As Ron Chernow put it in his book, Alexander Hamilton, “The Articles of Confederation promised little more than a fragile alliance of thirteen miniature republics.”

In a nutshell, here’s what you need to understand about the quote-unquote United States of America. Until the American Revolution, each colony existed very much unto itself. Most people never left the colony where they were born. They thought of their colony as their country. The thirteen British colonies along the eastern seaboard of the continent of North America had little in common with each other, and did not think of themselves as a unit in any sense of the word.

The Revolution gave the colonies common cause, but as soon as the war was over, everyone retreated to their insular communities, going back to the idea that their state was their country. The sense of unity still wasn’t there. This is why the Articles of Confederation were so borderline useless. The Articles barely tied the states together. It was still very much a mentality of each state for itself. 

The European powers, especially Great Britain, didn’t think the thirteen states would or could ever form a cohesive unified country. They all expected the “United States of America” to fall into disunity at the first possible opportunity. But if the states didn’t stand together as a unified country, they could never hope to accomplish anything. No foreign power was going to enter into a treaty of commerce with a mere state. If the states didn’t tie themselves together with some sort of strong national compact, each one would inevitably end up as insignificant cog in a world economy continuing to be dominated by the great European powers.

This is what the delegates to the Constitutional Convention were up against. The stakes were high, and the very survival of the United States of America was on the line. And the two delegates who did arguably the most to win the battle for national unity were James Madison and Alexander Hamilton.

Madison and Hamilton had served together in the Confederation Congress from 1782 until 1783. In September 1786, they were both delegates to what was called the Annapolis Convention. It was a first attempt at revising the Articles of Confederation, but not enough states sent representatives for the group to do anything other than issue a call for another convention to be held the following May in Philadelphia. They framed the proposed Philadelphia convention as an opportunity to “render the Constitution of the federal government adequate to the exigencies of the Union.”

Now, I need to say a few words about words. The Articles of Confederation were not officially called a “Constitution” the way the Constitution of the United States of America is called a, or “the” Constitution. But many people did refer to the Articles of Confederation as a constitution. So the semantics get a little complicated. Anytime I quote and you hear the word “constitution” just try to put it in context based on what else we’ve been discussing.

As I mentioned before, the original intent of the convention in Philadelphia was to revise or fix the Articles of Confederation. The convention was known at the time as the Grand Convention. Only in later years, after the Grand Convention produced the document we call the Constitution of the United States of America did the convention get a re-brand and become known to history as the Constitutional Convention.

Madison and Hamilton spent many hours in Annapolis conversing and comparing ideas for how to improve the government of the United States. Shortly before the Grand Convention was due to convene, James sent letters to George Washington and Edmund Randolph, leading Virginia statesmen, outlining his thoughts. 

“Conceiving that an individual independence of the States is utterly irreconcilable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.”

James was aiming for what he referred to as mixed government. He did not want to abolish states altogether, but he also didn’t want the states to be prime. The states needed to be subordinate to a central government when necessary, but still be able to exercise their own sovereignty where appropriate. He wanted to thread the needle between thirteen independent republics, which is what they had and what wasn’t working, and one undivided republic, which the states would never go for, because it would obliterate them.

He outlined a plan with a national judiciary, an executive department with administrative officers and control over the military, and a bicameral legislature with the lower house’s membership based on population and the upper house’s membership determined in a different (but not specified) way. This plan would come to be known at the convention as the Virginia Plan.

James arrived in Philadelphia for the convention on May 3, 1787. Other members of the Virginia delegation were George Washington, George Wythe, John Blair, Edmund Randolph, James McClurg, and George Mason. So for those keeping count, that’s 3 Georges, 2 Jameses, 1 John, and 1 Edmund.

James and several other delegates stayed at Mrs. House’s boardinghouse; a number of others lodged at the Indian Queen Tavern. This gave them the opportunity for a lot of conversations outside the confines of the official convention. 

The Grand Convention was James’s first chance to meet Benjamin Franklin, who was by this time 81, and by far the elder statesman of the entire group. By May 25, enough delegates had arrived in Philadelphia to begin the official meetings. Among the delegates was Alexander Hamilton. We already know that both John Adams and Thomas Jefferson were absent from the convention because they were serving in England and France, respectively. Benjamin Rush recorded Franklin’s comment that the convention was “the most august and respectable assembly he was ever in in his life.”

The Grand Convention consisted of a total of 55 delegates, but there usually weren’t more than 30 in attendance on any given day. No more than 11 of the 13 states were ever present at the same time on the same day. Even when trying to ensure the country’s unification, the states couldn’t get their act together enough to all show up at the same time.

James decided to take detailed notes of the convention discussions and debates, a decision that would later prove to be nearly invaluable to historians. Along with other diligent note-takers and diarists, this is the best record we have of what took place at the convention. During his thorough study of past confederacies, he wished he had more detailed records of “the process, the principles, the reasons, and the anticipations, which prevailed in the formation of them.” So this time around, he intended to be the one to create those records for future generations.

James later published his notes, but not before going through them and revising them, altering them, and sometimes removing references to things he said that he later wished he hadn’t. So they are a valuable resource, but not an unadulterated one.

For real Constitutional history nerds, I recommend a book called Madison’s Hand: Revising the Constitutional Convention by Mary Sarah Bilder. She’s a law professor who gives a meticulous account of the changes made to Madison’s convention notes. He published them decades after the convention, after he and Hamilton had become bitter enemies, and after even he and Washington had fallen out. Many of the positions Madison took at the convention did not comport with his later political leanings, and it’s quite interesting to see how he adjusted the record. 

The first thing the delegates did was elect George Washington as chairman of the convention. A few days later, Edmund Randolph presented the Virginia Plan, which consisted of 15 resolutions, and the convention spent the next few weeks debating the details. Early on, the seven states present voted 6-1 that “a national Government ought to be established consisting of a supreme Legislative, Executive and Judiciary.” This meant that the convention had decided to create something new, rather than simply make changes to the existing confederacy of states. 

But then they immediately got stuck on the next question: should the states be represented equally in the legislature, or should representation be based on population. Obviously, the small states like Delaware and Rhode Island wanted equal representation, because they felt they would be overwhelmed by the large states like Virginia, Pennsylvania, and Massachusetts, which contained the most people, and would have a greater legislative voice if representation were decided by population. Which, of course, is what the large states wanted.

They ended up in a stalemate on this question, so it was tabled, and they moved on to a different question: should the members of the lower legislative house be elected by the people of the states, or should the state legislatures elect the national legislators. Roger Sherman of Connecticut said that the state legislatures should do the electing, because the people lacked information and “are constantly liable to be misled.” And this was before the Internet! Others, including James, were in favor of direct election by the people so that the government would have “as broad a basis as possible.”

Ten states were present that day. Six voted in favor of direct election by the people, two voted against, and two were divided, so their votes were wasted. They left unsettled for the moment how the members of the upper legislative house would be elected. They did agree though that the national legislature would have power over all matters where the individual states were “incompetent.” They also agreed that the states should be forbidden to enact laws that contradicted treaties signed by the United States government.

Next, they turned to discussing the executive. There was an unresolved disagreement over whether the executive power should reside in one single man, or a committee. Some delegates thought that a solitary executive was too much like a monarch. They tabled the discussion for lack of agreement.

The next day, June 2, they turned their attention to how the executive would be elected, regardless of whether it was one man or several. Options included having the state legislatures choose, having the national legislature choose, or having the people choose. James Wilson of Pennsylvania proposed an electoral college, but that was defeated. They decided that the national legislature would elect the executive and that he/it would have a single term of seven years.

Benjamin Franklin proposed that executive officers receive no salary, because he thought paying them would result in a “greedy scramble for offices” in Ralph Ketcham’s words. He wanted the government to depend on “public-spirited persons willing to serve without pay,” but James and others knew that was unrealistic. They knew that many people otherwise worthy of serving in government would be unable to serve if they weren’t paid for their work. Franklin’s motion was defeated.

When the delegates returned after the weekend, they voted on the question of a single executive vs. a committee. The states that favored a lone executive won that vote. Virginia’s delegation voted in favor of a lone executive, and it’s likely that George Washington’s presence at the convention helped convince wavering states that a lone executive was the way to go. Everyone assumed that Washington would be the chief executive, so what could possibly go wrong? They didn’t spend a lot of time thinking about what would happen if a patently unqualified individual ascended to the presidency.

The specter of monarchy hung over the convention throughout the debates. Some delegates didn’t want to give the executive a veto power, because of the colonies’ past experience with the British king vetoing measures that were important to the colonies. But by building in a legislative override of a presidential veto, these worries were calmed.

The entire convention almost blew up on June 9 when William Paterson of New Jersey raised the point that none of them had been sent there by their states to create a new constitution. Their mission was only to revise the Articles of Confederation. They were still arguing over whether representation in the national legislature should be based on population or be equal among states, regardless of population.

James Wilson of Pennsylvania had previously hinted that if the small states (of which New Jersey was one) refused to go along with the new constitution, the large states (including Pennsylvania) would form a union without them. Paterson irately asserted that the convention had “no authority to compel the others to unite.” Wilson then said, “If New Jersey will not part with her Sovereignty, it is in vain to talk of Government.”

The convention adjourned for the weekend, very much in danger of breaking apart altogether. When they reconvened on June 11, Roger Sherman of Connecticut proposed a compromise: representation in the lower house would be based on “the respective numbers of free inhabitants” and in the upper house the states would have equal representation. It won’t surprise you at all to learn that the slave-holding Southern states, especially Virginia, objected to the population count being based on free inhabitants.

The three-fifths rule had originated as part of an attempt by the Confederation Congress to create a revenue source for the federal government.  Five slaves counted as the equivalent of three whites for this purpose, and it had originally been proposed by Congressman James Madison. Using population numbers from the 1790 census (which of course was after the Constitution had already been adopted), Massachusetts was the most populous, with about 475,000 free inhabitants, then Virginia with about 455,000, followed by Pennsylvania with about 431,000. But when you added in Virginia’s slave population of 293,000, suddenly Virginia was far and away the most populous state, with 748,000 people. There’s a reason they wanted to preserve their dominance by including slaves in the population count.

By June 13, the delegates had agreed to a number of things that mostly comported with the original Virginia Plan. The national government would consist of three branches, the legislative branch would be two houses, and representation in both would be calculated by population, using the three-fifths rule. The lower house would be elected to three-year terms by the people, but the upper house would be chosen by the state legislatures and serve seven-year terms. A lone executive would serve for a seven-year term with no option to be re-elected. The executive would have a veto that could be overridden by a two-thirds majority in Congress. Judges for the new national courts would be appointed by the upper house of Congress, and they would serve as long as they exhibited good behavior. An amendment process was to be included, and ratification by the states would take place via conventions of the people of each state. It seemed like they were making a lot of progress.

And then on June 15, William Paterson of New Jersey threatened to blow things up again by presenting what came to be known as the New Jersey Plan. It aimed to mostly throw out everything that had been agreed to, and go back to the original plan of merely revising the Articles of Confederation. It proposed giving the Confederation Congress the power to levy certain taxes and regulate interstate and foreign commerce, but otherwise left the structure and representation of Congress as it was. The New Jersey plan was also okay with establishing new executive and judicial branches, but it didn’t get into any of the specifics that had already been discussed.

Madison felt that the New Jersey Plan didn’t go nearly far enough toward fixing what was wrong with the Articles of Confederation, and Edmund Randolph made the argument that New Jersey’s plan would fix none of the problems they had been empowered by their states to address.

Then Alexander Hamilton spoke for the first time, and introduced a plan that made everything else look reasonable in comparison. He wanted the President, Senate, and national judges to all serve indefinite terms, as long as they showed good behavior. The President would have an absolute veto, and the Congress would have the power to “pass all laws whatsoever.” State governors would be appointed by the national government. If you wanted to scare the states into thinking that they were about to become obsolete, Hamilton’s proposal was the way to do it. Whether Hamilton was serious about all these proposals or whether he really was trying to come up with a plan so outlandish it would make the Virginia Plan look like the most reasonable alternative is up for debate.

The day after Hamilton presented his ideas, James addressed the convention about the New Jersey Plan. As Ralph Ketcham writes, “He…spoke not to reinforce the prejudices of those who already agreed with him, but rather to crumble away what he hoped were the soft edges of the small-state voting bloc….Madison questioned whether the New Jersey Plan would serve the urgent needs of the United States. In leaving the states ‘uncontrouled’ [sic] in their power to violate laws and treaties, the plan opened the door for foreign intrigue and internal dissension.”

James pointed out that if the small states were so stubborn as to prevent any plan from being adopted at the convention, the result would likely be disintegration of the Union and the formation of regional confederacies, leaving the small states “defenseless before the ambition and power of their larger neighbors.”

His speech apparently worked, because the Convention rejected the New Jersey Plan. The Virginia Plan was still the working plan, but there were still details to be worked out. Lots of details. It might seem like I’ve already gone too far into the weeds with this convention stuff, but I assure you, there are plenty of weeds I’ve left untouched. In the interest of time, and everyone’s sanity, I’m going to skim over some of the remaining details. 

Suffice it to say that the delegates to the convention were irritable and disagreeable pretty much the entire time they met. Things that had been preliminarily agreed to were suddenly back up for debate. The small state vs. large state divide was probably the most prominent, but the slave-holding vs. non-slave-holding divide was pretty important too.

After several weeks of debate, including a pause to celebrate the Fourth of July, the convention reached what is called the Great Compromise on Congressional representation. Only 10 states were present. Two of the three delegates from New York had left in a huff, meaning that Alexander Hamilton, as the lone New York delegate could have no vote, because he couldn’t be a majority all by himself. Rhode Island had refused from the beginning to participate in the convention, and New Hampshire’s delegation hadn’t arrived, despite the convention having convened more than six weeks earlier. The delegates from Massachusetts were divided, so their vote was wasted. So in the end, only nine states voted 5-4 to adopt a plan of equal representation in the upper house. The small states had won this important battle. In the interest of preserving the Union, the large states decided to just accept their loss and get on with it. Possibly no one was more disappointed than James Madison.

In the end, this was an important turning point, because once they were assured of equal representation in one house of Congress and the specter of domination by the large states was abated, the small states suddenly became very supportive of vesting more and more power in the new national government. It was a turning point for James too, and one that would have long-lasting consequences. He was all for granting lots of power to the national government when he thought that Virginia would be able to dominate it. But once it became clear that the small states would have their say too, he became conveniently less interested in the national government having broad powers. Although he and Hamilton would remain in agreement about the strength of the national government throughout the ratification process, this is the wedge that would ultimately divide them and lead to the creation of the Federalist and Republican parties.

One of the largest issues still outstanding was how to choose the President. There were supporters of direct election and supporters for selection by the legislature, but they could not see their way to a compromise until the idea of the Electoral College was once again presented. The convention gradually made its way toward that solution. James helped them get there by pointing out that letting the legislature choose the executive would result in the legislature being “courted and intrigued with by the Candidates, by their partizans [sic], and by the Ministers of foreign powers.” 

He favored direct election by the people, but that idea had been rejected by the convention, so he played up the downsides of direct election in order to make the Electoral College appear to be the best solution. And that’s how we ended up with one of the most arcane institutions in American history.

The delegates also gradually revised things already agreed to in order to arrive at things we all recognize as part of our government today: a four-year term for the President with the possibility of re-election; a six-year term for the Senate; a two-year term for the House of Representatives. The House was also selected as the body that would choose the President if the Electoral College resulted in a tie. 

Another important decision was giving Senators individual votes instead of votes by state. Under the Articles of Confederation, and under the rules of the Grand Convention, each state only had one vote, so if two members of a state’s contingent favored one outcome but three members favored a different outcome, the three won that point. Under an individual vote system, a state’s two senators could vote in opposite ways on a measure, and both votes would be counted, instead of the state being deadlocked and losing its chance to vote at all, which we’ve seen happen quite a bit during the pre-Constitution years.

Slavery reared its ugly head one last time in a dispute over Congress’s power to regulate trade. The Southern states were mostly engaged in agriculture, while most trade was concentrated in the Northern states. The Southern states wanted a two-thirds majority requirement for laws regulating trade, to ensure that the Northern states wouldn’t always be able to get their way. But the Northern states wanted an end to the slave trade. Long story short: they compromised, which is why no two-thirds majority is required for laws regulating commerce and why the Constitution states that Congress can’t do anything to outlaw slavery until at least 1808. They didn’t actually use the word “slaves,” choosing instead the bland phrase “migration or importation of such Persons,” but they aren’t fooling anybody.

By September 8, the convention felt like they had concluded matters to the best of their ability. What they had agreed to though was not a coherent, readable document, so a Committee of Arrangement and Style was convened to draft the final document. The committee consisted of James Madison, William Samuel Johnson of Connecticut, Rufus King of Massachusetts, and Alexander Hamilton of New York, and Gouvernor Morris, of Pennsylvania.

Morris was responsible for the final draft, a choice James heartily supported, later writing, “A better choice could not have been made, as the performance of the task proved.” Morris also wrote the famous preamble that begins, “We, the people.”

The convention then spent several days reviewing every clause and approving, or in some cases, changing it. There were still strong objections to the document overall, with some delegates, including Edmund Randolph, calling for a second convention to be held to come up with something better. On September 15, 1787, James recorded the following in his notes, “On the question on the proposition of Mr. Randolph, all the states answered—no. On the question to agree to the Constitution as amended. All the states ay. The Constitution was then ordered to be engrossed. And the House adjourned.”

Two days later, on Monday, September 17, 39 of the 42 delegates still in attendance signed the new Constitution of the United States of America. The three who refused to sign included two Virginians—George Mason and Edmund Randolph—and Elbridge Gerry of Massachusetts. And here’s a fun fact for you: Roger Sherman of Connecticut is the only person to sign all four of America’s founding documents: the Continental Association adopted at the First Continental Congress, the Declaration of Independence, the Articles of Confederation, and the Constitution.

I’ll let Ralph Ketcham have the last words on this subject. “As Madison walked back to Mrs. House’s, he…meditated. The document finally approved was in some ways very different from the plan he had presented in May. The small states had imposed what Madison persistently regarded as the unjust and impractical principle of state equality in the Senate. … Though Madison would have been willing to create an even more powerful national government had it not been flawed by state equality, he was by and large content with the balance of powers finally agreed upon. … In fact, he increasingly admired the structure of the new government.

In attending to every detail of this structure, and in being sensitive at every point to the effect of blending the various parts, Madison played his most critical role, and earned the title later bestowed upon him, Father of the Constitution.”

Next week, I swear we’ll get back to Dolley Payne Todd Madison! First we’ll breeze through the ratification of the Constitution and finally make it past the yellow fever epidemic of 1793, which is more or less where we left off back in episode 4.2.

Thanks for listening to this episode! As usual, it was produced by me, and the music is by Matt Dull. Please share it with all your nerdiest history buff friends!