The Origins of the Constitution
d.w.rowlands [at] gmail.com
In November 2013, several friends and I taught a one-day series of classes on the American Revolution for high school students through the MIT Educational Studies Program. One of my contributions to the series was a class on the Constitutional Convention. This essay is an expansion of my notes for the class.
The Articles of Confederation
Before the American Revolution, there was no political connection between the British colonies in North America besides their shared allegiance to the British Crown. Each colony had its own government, responsible to its people and to the Crown. Several attempts were made to unify the colonies, but none were successful. King James VII and II tried to unify the colonies from Maine to New Jersey into a "Dominion of New England" in the sixteen-eighties, but the Dominion was incredibly unpopular and the merged colonies separated as soon as King James was overthrown in the Glorious Revolution. Later, in 1754, Ben Franklin proposed the "Albany Plan of Union", combining all of the North American colonies under one common parliament at a conference to discuss common defense during the French and Indian War.
In 1774, when Parliament passed the Intolerable Acts in response to the crises over the tax on tea, twelve of the colonies called the First Continental Congress as a trade conference to discuss options for boycotts and other collective action, but without any intent to form a government. The Second Continental Congress was scheduled for the following spring as a follow-up in case the Intolerable Acts were not repealed.
Although it had been called as a trade conference, by the time it occurred the Revolutionary War had already begun in Massachusetts with battles between the colonial militia and British troops. Congress ended up responding to the situation by taking on the responsibilities of a national government, raising a Continental Army, signing treaties, printing money, and borrowing money from European powers. However, its actual power over the states was minimal: it had to beg them to provide money and troops, and had no ability to enforce laws independent of the states.
As the war progressed, Congress drafted a constitution called the "Articles of Confederation" intended to formalize and legitimize this system. The Articles did give Congress more explicit power, but leave sovereignty fully in the hands of the states, referring to the Confederation as a "firm league of friendship", but not a nation or government:
- The Congress of the Confederation consisted of delegates from each state voting as delegations with a single vote per state. Delegates were appointed by state legislatures and could be replaced at any time. When Congress was not in session, an executive "Council of the States", with one representative from each state, would remain to perform essential duties.
- Congress had the sole power to make war and engage in commercial and diplomatic relations. States were forbidden from maintaining standing militaries, but required to maintain trained militias. Congress could select naval officers and high-ranking army officers, but army officers from the rank of colonel on down would be appointed by the legislatures of the states providing the troops they commanded.
- States were required to permit freedom of movement of each others' citizens and to provide the same rights to citizens of other states as to their own. However, they were permitted to tax trade between states.
- State legislatures were to fund the Confederation in proportion to their states' real property values. Congress could not collect taxes directly.
After the war, Congress's weakness continued to be a problem and the idea of amending the Articles to produce a stronger and more effective government became popular. In 1786, delegates from five states met in Annapolis with the intention of drafting proposed amendments. However, the low turn-out led them to instead propose that Congress call an official convention with representatives from all of the states. At the same time as the Annapolis Convention was meeting, a rebellion of poor farmers in Massachusetts that the Confederation was unable to assist Massachusetts in suppressing highlighted the need for a stronger government. Congress officially requested that all thirteen states send delegates to a convention in Philadelphia the next spring to discuss amending the Articles and, this time, every state except for Rhode Island sent delegates.
The Virginia Plan
When the delegates summoned by the Congress of the Confederation arrived in Philadelphia in May 1787 to amend the Articles of Confederation, their first order of business was to elect George Washington as president of the convention. After this was done, and rules had been agreed upon, the delegation from Virginia presented a plan for a new constitution to establish a significantly stronger federal government. This plan, which took the form of fifteen resolutions, had largely been drafted by James Madison while waiting for enough delegates to arrive to constitute a quorum, and ended up providing an overall agenda for the whole convention and the original skeleton of what would become the Constitution. The proposed plan was a major shift from the Articles, as the government it outlined was even more centralized than that in the final Constitution.
- Resolutions ten through fifteen largely served to specify that the government should represent a nation rather than a confederation of states.
- Less than a unanimous vote would be needed to add new states.
- The national government would have the responsibility to ensure "a republican form of government" at the state level.
- State officers were to be bound by oath to support the national constitution as well as their state constitutions.
- The new constitution would be ratified by conventions rather than by state legislatures.
- Resolution six gave the national legislature the power to legislate on anything where the "harmony of union" might require it, and specifically gave it the power to overrule laws passed by state legislatures and to use force against states failing to fulfill their responsibilities to the national government.
- Resolutions two and three specified a bicameral legislature---as existed in Britain and most colonial and state governments---with both houses apportioned either by population or tax contribution. This apportionment, unlike the equal representation of the states under the Articles, made the legislature more clearly responsible to the national population.
- Resolution four created a lower house elected by the people, very similar to the current House of Representatives, except that representatives were subject to recall and ineligible for re-election to ensure that this house was very close to the will of the people.
- Resolution five created an upper house without term limits that would be nominated by the state legislatures but confirmed by vote of the lower house. This was intended to create a more careful and responsible body that would be less affected by democratic passions.
- Resolutions seven and eight created a chief executive to be elected by the national legislature for a fixed term of years and ineligible for re-election, unlike the British prime minister, who would be responsible for enforcing national law. The chief executive and high-ranking judges would form a "council of revision" to veto laws and the national legislature's vetoes of state laws, with the possibility of being overruled by a supermajority of the national legislature.
- Resolution nine created a national judiciary, something that had not existed at all under the Articles.
- Judges would hold office during "good behavior" and there would be lower courts of original jurisdiction and a supreme court of appeals, much like under the Constitution.
- The national judiciary would have jurisdiction over national tax law, impeachments, matters that "involve the national peace", crimes on the high seas, and cases with diversity of jurisdiction.
Large and Small States
While James Madison's Virgina Plan did become the basis for the Constitution, it was not uncontroversial, nor was it the only plan proposed. It was, after all, a rather radical deviation from the Articles of Confederation: it created a strong, sovereign national government, explicitly superior to state governments and with representation drawn based on population rather than on equal representation of the states. As such, it was concerning both to delegates from small states who wanted to protect their states' interests and independence and to delegates who were generally distrustful of powerful governments.
Immediately after the Virginia Plan was presented on 29 May, Charles Pinckney of South Carolina presented his own plan. It described a weaker confederation, but with a bicameral legislature elected by population and region and a more established executive and judiciary than under the Articles. This plan was not seriously discussed, but may have been referred as a reference to the Committee of Detail that later drafted much of the text of the Constitution based on the Convention's modifications of the Virginia Plan. The Convention spent the next two weeks discussing the details of the Virginia Plan. While the larger states---other than New York, two of whose three delegates were strong supporters of state independence who quickly left the convention in disgust, leaving their delegation without quorum to vote as only Alexander Hamilton remained---and the Carolinas and Georgia---which had large western land claims and rapidly-growing populations were supportive of the plan, several of the smaller states made it increasingly clear that they would be unwilling to sign on to the system being discussed.
The New Jersey Plan
On 15 June, the New Jersey delegation presented an alternate plan more consistent with the wishes of the small states. It is unlikely that this plan, which consisted of relatively minor modifications to the Articles, was expected to gain much traction, but it was intended to provide alternative ideas to the strong national government that was being discussed.
The New Jersey Plan retained a unicameral Congress with one vote per state and a plural executive board selected by and responsible to Congress that was permitted to make minor decisions when Congress was adjourned. However, it did give Congress permission to regulate trade and raise money through tariffs, and said that the national government could institute direct taxes based on population if the state governments consented. A national appeals court would exist to hear final appeals of cases relating to national law, but all cases would have their first hearings in the state courts.
Three days later, Alexander Hamilton spent much of the day proposing yet another alternate plan, this one based more strongly on the British government and resulting in an even more centralized government than proposed by the Virginia delegation. It featured a bicameral legislature, with the lower house elected by the people and the upper house selected for life by an electoral college. This legislature would have the authority to legislate on all matters, and to override any state legislation. The electoral college would also select a chief executive to serve for life, who would have an absolute veto on legislation and who would command both the national military and state militias.
Unsurprisingly, there was virtually no support for Hamilton's plan among the other delegates. However, the next day, the Convention voted to reject the New Jersey Plan, possibly in part due to his arguments on the need for a stronger and more centralized government.
The Connecticut Compromise
As discussion of the Virginia Plan continued, some of the small state delegations threatened to withdraw and, on 2 July, the committee found itself deadlocked 5-5-1 on the matter of equal or population-based representation of the states. The deadlock was finally broken by a series of compromises, mostly proposed by Roger Sherman and Oliver Ellsworth of Connecticut. The original compromise proposal was:
- An upper house selected by state legislatures with one vote per state.
- A popularly elected lower house with one representative per forty thousand people, with slaves counted as three-fifths of a free person.
- A restriction that money bills could only be proposed by the lower house and could not be amended by the upper house.
The Constitution in Committee
The Connecticut Compromise resolved the crisis over representation that nearly scuttled the Constitutional Convention. However, a number of other controversies remained. The most serious of this was the debate over slavery.
At the time of the Revolution, all thirteen colonies permitted slavery. However, it was a relatively uncommon institution in the North, while the Southern elite consisted of large landowners who relied on slave labor to farm their land. While Northerners had begun to oppose slavery and largely hoped that it would die out, the economy of the South was still heavily dependent on it, and Southern delegates feared a national government that might attempt to regulate or ban the practice.
More likely, and more tolerable to Southerners, than a complete ban on slavery was a ban on the international slave trade. Such a ban would naturally fall within the purview of a national government concerned with the regulation of commerce. When an initial draft, written by a committee chaired by a delegate from South Carolina, included a clause forbidding Congress from banning the slave trade, the Convention was unable to reach a decision on the matter. It was referred to a committee with a member from each state, which proposed the compromise that eventually ended up in the Constitution: Congress would be forbidden from banning the slave trade for two decades, and the two-thirds majority requirement for passing acts regulating navigation would be removed.
The other major compromise that the Convention made about slavery involved counting the population for representation in the lower house and for direct taxes. Northern delegates didn't want slaves---who had no political power---to be counted towards representation, but thought they should be counted towards taxation, since they were economically productive. Southern delegates, naturally, wanted the opposite. The eventual compromise of counting three-fifths of the slave population towards both representation and taxation had two roots. The three-fifths ratio was the product of an earlier debate over amending the Articles of Confederation to base direct taxation on population rather than land value assessments. That proposal had included a three-fifths ratio for slaves based on an estimate that slaves were three-fifths as economically productive as free laborers. The tying of direct taxation and representation to the same ratio was a result of the discussions over representation by population or by state earlier in the Convention.
Committee of Detail
On 23 June, the Convention established a "Committee of Detail" to write a first draft of the new Constitution based on the broad strokes that the Convention was agreeing upon. The committee was not intended to make major policy decisions, but rather to agree on wording to implement decisions made by the whole Convention. Its chair, John Rutledge, also declared it an important goal that the proposed text be as simple and basic as possible, so that non-essential details of the workings of government could be changed as circumstances warranted.
However, Rutledge also had concerns that the Virginia Plan would lead to too strong a national government. As a result, he pushed the committee to limit Congress to enumerated powers---many of them taken from the Articles---while the Convention had previously agreed that it should have general authority to legislate on all matters. While the committee eventually agreed on this, and it found its way into the final text of the Constitution, another committee member, James Wilson, insisted on adding the Necessary and Proper Clause and strengthening the Supremacy Clause to somewhat increase the power of Congress. He also added some restrictions on state powers to Article I, which otherwise defines the make-up and powers of Congress.
Committee on Postponed PartsAfter the Committee of Detail issued its report on 6 August, debate continued. When an amended version of the Committee of Detail's draft had been agreed upon, several important issues remained unresolved. A new committee, the "Committee on Postponed Parts" was established, consisting of James Madison, Benjamin Franklin, and several other delegates who had developed a reputation of being open to compromise. They settled a number of matters, the most important of which related to the Presidency.
While the Convention had agreed relatively early on that a singular chief executive was necessary, there was very little consensus on how one might be selected. In general, they saw the role as similar to that of the British monarch, or the royal governors that the colonies had had before independence. While they wanted to weaken the executive somewhat in comparison to these, they thought that their independence from the legislature was essential. The Committee on Postponed Parts did strengthen the President somewhat, giving them responsibility making treaties and appointing ambassadors, which had previously been solely the role of the Senate.
The biggest matter the committee resolved was the matter of the election of the President. Popular election was thought to be impractical, because national campaigns would be too difficult and so most voters would not know the reputations of the candidates. On the other hand, selection by the legislature was distrusted because it might make the President beholden to them. Election by state legislatures was also considered, but thought inappropriate for a federal system. The final compromise, with an electoral college to be selected by state legislatures at their discretion, with ties broken by Congress, allowed for the removal of the originally proposed one-term limit on the President, since they would be less directly beholden to Congress for their re-election.
The creation of the Vice Presidency, an office which had not previously been considered, was another byproduct of this discussion. The delegates did not anticipate the development of national political parties, and assumed that states would nearly always vote for "favorite son" candidates, leading to a deadlock with no clear national choice. By requiring that electors cast two votes, not both for residents of their own state, they hoped to ensure that at least one of these votes would go to a respected national figure. The Vice Presidency was created as a prize for the second vote-getter, to decrease the chance that electors would throw away their second vote rather than use it for a respected person from another state.