The Constitutional Convention and Debates over Ratification and The Constitution

Plain Men

January 25, 1788

In January 1788, delegates from across Massachusetts met in Boston to vote on a proposed new Constitution for the United States.

A farmer named Amos Singletary spoke against it:

Amos Singletary These lawyers, and men of learning, and moneyed men, that talk so finely…

Amos Singletary …they will swallow up all us little folks, like the great Leviathan, Mr. President; yes, just as the whale swallowed up Jonah.

Jonathan Smith Mr. President, I am a plain man, and get my living by the plough.

Jonathan Smith …I have lived in a part of the country

Jonathan Smith where I have known the worth of good government by the want of it.

He meant Shays's Rebellion, when western farmers who could not pay debts and taxes in hard money had shut down the courts. The uprising convinced many Americans, Smith among them, that the country needed a stronger national government.

Five states had already ratified, or approved, the Constitution. It needed nine to take effect. A no from Massachusetts, one of the largest states, could sink it.

The whole fight came down to one problem: how to build one government out of people who did not trust each other.

In All Cases Whatsoever

April–May 1787

In May 1787, delegates began meeting at the Pennsylvania State House in Philadelphia. Every state except Rhode Island took part. Over the summer, fifty-five men attended. All were white, and most were wealthy lawyers, merchants or planters. The old Confederation Congress had called the meeting for the sole and express purpose of revising the Articles of Confederation

James Madison of Virginia had arrived early, with a plan for a far stronger national government. He wanted Congress to have a veto over state laws “in all cases whatsoever.” That was the same phrase Parliament had used in 1766 to claim power over the colonies.

On May 29, Virginia's governor, Edmund Randolph, presented Madison's ideas as the Virginia Plan. It called for three branches of government and a Congress of two houses, with seats based on each state's population or taxes paid. That meant replacing the Articles, not revising them. The debates stayed secret all summer, and most of what we know about them comes from Madison's daily notes.

Swallowed Up

June 9–July 17, 1787

Small states feared that seats based on population would let the large states run everything.

William Paterson New Jersey will never confederate on the plan before the Committee. She would be swallowed up.

Paterson's New Jersey Plan kept one vote per state in a one-house Congress. The delegates rejected it, seven states to three.

James Madison · adapted from his notes The States are divided not by their size, but principally by their having or not having slaves.

Gunning Bedford Jr. · Yates's notes I do not, gentlemen, trust you.

Delaware's Gunning Bedford warned that if the large states broke up the union, the small ones would find a foreign ally.

On July 2, the delegates split five states to five over giving each state an equal vote in the Senate.

Roger Sherman We are now at a full stop.

A committee worked out a deal. Switch between the two houses and compare Virginia with Delaware.

On July 16, the Great Compromise, also called the Connecticut Compromise, passed by a single state. Population would decide House seats, and every state would get two senators.

The next day, Madison lost again when the delegates voted down his national veto over state laws.

Property in Men

August 8–29, 1787

Southern delegates wanted enslaved people to count toward each state's House seats, even though they could not vote.

Gouverneur Morris Are they men? Then make them Citizens and let them vote.

In August, the debate turned to the Atlantic slave trade, and South Carolina's John Rutledge warned the delegates:

John Rutledge Religion & humanity had nothing to do with this question. Interest alone is the governing principle with nations.

John Rutledge The true question at present is whether the Southern States shall or shall not be parties to the Union.

Virginia's George Mason, who enslaved many people himself, attacked the trade:

George Mason Every master of slaves is born a petty tyrant.

Charles Cotesworth Pinckney South Carolina & Georgia cannot do without slaves. As to Virginia she will gain by stopping the importations.

Pinckney meant that Virginia, with more enslaved people than its planters needed, would profit by selling them south.

Southerners wanted laws regulating trade to need a two-thirds vote. The delegates sent that question and the slave trade to one committee.

Gouverneur Morris These things may form a bargain among the Northern & Southern States.

The committee proposed protecting the slave trade until 1800. When South Carolina asked for 1808, Madison objected:

James Madison Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves.

The extension to 1808 passed, seven states to four, with the New England states voting yes.

In return, the North got its half of the bargain: laws regulating trade would need only a simple majority. Congress could tax imports but never exports, which protected Southern tobacco and rice. This was the Commercial Compromise. Madison thought it “wrong to admit in the Constitution the idea that there could be property in men.” So the Constitution never used the word slavery, but it protected slavery in three ways. First, each state added “three fifths of all other Persons,” meaning enslaved people, to its population count.

That count set each state's share of House seats and direct taxes, yet enslaved people themselves could not vote.

Second, Congress could not ban the import of enslaved people before 1808. Third, anyone who escaped slavery into another state “shall be delivered up” to the person claiming them.

1790: 697,681 enslaved people

Rising or Setting

September 4–19, 1787

Everyone expected George Washington to become the first president. The harder question was how to choose the presidents after him.

Some delegates wanted Congress to choose, while others wanted the people to elect the president directly. George Mason argued that letting the people choose would be like asking “a blind man” to judge colors. The delegates settled on an Electoral College. Each state got electors equal to its House seats plus its two senators. Because the three-fifths rule added to Southern House seats, it also added to the South's votes for president.

The new Congress got real powers: to tax, to regulate trade, and to declare war. It could also make all laws “necessary and proper” for carrying out those powers.

Sort these features into the Articles of Confederation and the new Constitution.

On September 12, Mason called for a bill of rights, a list of freedoms the government could not violate.

Roger Sherman The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.

The delegates agreed with Sherman and voted the idea down, ten states to none. In his written objections, Mason answered that

George Mason the Declarations of Rights in the separate States are no security.

Mason had a point. Under the Supremacy Clause, the Constitution and federal laws outranked state laws, even state bills of rights. The Constitution divided power between the national government and the states, a system called federalism.

On September 17, thirty-nine delegates signed the Constitution. Three refused: George Mason, Elbridge Gerry of Massachusetts, and Edmund Randolph.

As the last delegates signed, Benjamin Franklin spoke about the sun painted on the back of Washington's chair. Many times that summer, he said, he had looked at it

Benjamin Franklin without being able to tell whether it was rising or setting:

Two days later, Philadelphia's newspapers printed the Constitution, and the secret was out.

Publius

September 1787–January 1788

Supporters of the Constitution called themselves Federalists. Their opponents, the Anti-Federalists, feared it gave the national government too much power. Federalists were strongest among merchants and creditors in the port cities. Many Anti-Federalists were small farmers in the backcountry.

In New York, an anonymous Anti-Federalist writing as Brutus drew on Montesquieu's idea that republics must stay small:

Brutus History furnishes no example of a free republic, any thing like the extent of the United States.

Madison replied in an essay known today as Federalist No. 10:

James Madison Extend the sphere, and you take in a greater variety of parties and interests;

James Madison you make it less probable that a majority of the whole will have a common motive

James Madison to invade the rights of other citizens.

Madison argued that a large republic would hold so many factions that no single one could take control.

Writing as “Publius,” Alexander Hamilton, Madison and John Jay published eighty-five essays, now called the Federalist Papers, to win over New York.

The writer Mercy Otis Warren, publishing anonymously, warned:

Mercy Otis Warren There is no security in the profered system, either for the rights of conscience or the liberty of the Press

Like many Anti-Federalists, she wanted a bill of rights written into the Constitution.

By January 1788, five states had ratified. Then came Massachusetts, where this story began.

Brother Plough Joggers

January–February 1788

To win over doubters, Governor John Hancock, the convention's president, offered a list of recommended amendments.

John Hancock I give my assent to the Constitution, in full confidence that the amendments proposed will soon become a part of the system.

On February 6, Massachusetts ratified, one hundred eighty-seven to one hundred sixty-eight.

The convention ratified first and trusted that the amendments would follow. This became the Federalists' bargain: ratify now and add a bill of rights later. It helped carry Virginia and New York too.

Meanwhile, in Federalist No. 51, Madison explained how to build one government out of people who did not trust each other.

James Madison If men were angels, no government would be necessary.

James Madison Ambition must be made to counteract ambition.

Each branch could check the others. The president could veto bills, and two-thirds of both houses could override him. The president named federal judges, including Supreme Court justices, with the Senate's approval, and judges could serve for life. Voters elected only the House directly. State legislatures chose senators, and electors chose the president. Historians still argue over whether this design mainly protected liberty or mainly held back democracy. Open each part of the machine to see who chose it and what it could stop.

Thunder

June–July 1788

In June 1788, Virginia's convention met in Richmond. Patrick Henry, who had refused to attend the Philadelphia convention, led the opposition.

Patrick Henry Who authorized them to speak the language of, We, the people, instead of, We, the states?

He warned of “one great, consolidated, national government” that could tax people directly from a distant capital, as Parliament had tried.

Edmund Randolph had refused to sign the Constitution in Philadelphia, but now he supported it to save the union.

Edmund Randolph I will assent to the lopping of this limb, before I assent to the dissolution of the Union.

On June 21, while Virginia was still debating, New Hampshire became the ninth state to ratify, enough for the Constitution to take effect. But without Virginia and New York, two of the most powerful states, the new union could hardly work.

Henry wanted amendments before Virginia ratified, not after. Just before the vote, he promised that if he lost,

Patrick Henry Yet I will be a peaceable citizen.

Virginia ratified, eighty-nine to seventy-nine, after the Federalists promised to seek amendments.

On July 4, 1788, Philadelphia's parade included a float with thirteen columns, three of them unfinished for the states that had not yet ratified.

Benjamin Rush ’Tis done! We have become a nation.

In New York, Alexander Hamilton and the Federalists won ratification by thirty votes to twenty-seven. New York's convention also called for a second national convention to consider amendments. North Carolina and Rhode Island held out until the new government was already running, joining in 1789 and 1790.

Expressly

October 1788 – December 15, 1791

From Paris, Thomas Jefferson, the American minister to France, wrote to Madison:

Thomas Jefferson a bill of rights is what the people are entitled to against every government on earth

Madison agreed, but he doubted that “parchment barriers” could stop a determined majority. Other Federalists warned that listing some rights might suggest the government could violate the rest. The Ninth Amendment would answer that worry.

Running for the House in 1789, in a Virginia district with many Baptists, Madison promised amendments to protect religious freedom and other rights.

On June 8, 1789, Madison proposed amendments to keep the Federalists' promise and head off the second convention New York wanted. He later wrote that “as an honest man” he felt bound by that promise.

The Articles had reserved to the states every power not “expressly” delegated. Anti-Federalists wanted that word in the new amendments.

James Madison · adapted from the Annals It is impossible to confine a Government to the exercise of express powers;

A government needed implied powers, he argued, beyond the ones the Constitution listed.

On August 21, the House voted the word down again, and the Tenth Amendment left it out. In 1791, Alexander Hamilton would use implied powers to justify a national bank, and Madison would argue that the Constitution gave no such power.

In September 1789, Congress sent twelve amendments to the states, and by 1791 the states had ratified ten of them. Sort these Anti-Federalist demands into the ones that made it into the Bill of Rights and the ones that did not.

The Anti-Federalists lost the ratification fight, but their demands for religious freedom, a free press and jury trials entered the Constitution. Under Article V, an amendment needed two-thirds of both houses of Congress and the approval of three-fourths of the states. On December 15, 1791, Virginia became the last state needed, and the Bill of Rights took effect.

These first ten amendments limited only the federal government, and they left the Constitution's protections for slavery in place. Not until the twentieth century did courts use the Fourteenth Amendment of 1868 to apply most of them to the states.

His will freed no one.

Benjamin Franklin But now at length I have the happiness to know that it is a rising and not a setting Sun.