The Constitutional Convention of 1787
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The Constitutional Convention of
1787
The road from independence to a constitutional
government
03 April 2008
The
Constitution of the United States (1787) helped
create modern
democracies worldwide. (National
Archives and Records Administration)
(The
following article by A.E. Dick Howard is taken
from the U.S.
Department of State publication,
Historians on America
.)
The
Constitutional Convention of 1787
By A.E. Dick
Howard
On May 15, 1776, the convention meeting
in Williamsburg and acting as
Virginia's
de facto
governing body instructed that
colony's delegates at
the continental congress
in Philadelphia to introduce a resolution
declaring
Declaration of Independence from
Great Britain, adopted by the
Continental
Congress soon thereafter on July 4, set the former
colonies
on an irrevocable course that created
the United States of America. But
the creation
of the United States of America did not occur all
at once.
Eleven years later, another group of
delegates journeyed to Philadelphia
to write a
constitution for the new nation, a constitution
that still
defines its law and character.
The road from independence to constitutional
government was one of the
great journeys in
the history of democratic government, a road
characterized by experiment, by mistakes, but
ultimately producing surely
the most
influential national constitution ever written.
Even before the
break with Great Britain, the
American colonies saw to the nurturing of
their future constitutional culture. The lower
houses of the colonial
assemblies were the
most democratic bodies in the English-speaking
world,
and dialogue with the mother country
sharpened the Americans' sense of
constitutional issues. For a decade before the
outbreak of revolution,
disputes over taxes,
trials without juries, and other points of
contention
led to an outpouring of pamphlets,
tracts, and resolutions – all making
essentially a constitutional case against
British policy.
Declaring independence, the
founders of American democracy understood,
entailed establishing the intellectual basis
for self-government. On the
same day that the
Williamsburg convention spoke for independence,
the
delegates set to work on a declaration of
rights and on a constitution
for Virginia.
Virginia's 1776 Declaration of Rights was soon
emulated in
other states and even influenced
France's Declaration of the Rights of
Man and
the Citizen (1789). The early American state
constitutions –
every state adopted one –
varied in their specifics (for example, some
created a unicameral legislature, others opted
for bicameralism). But
they shared a basic
commitment to republican principles, principles
that
then seemed truly revolutionary in most
parts of the world – consent of
the governed,
limited government, inherent rights, and popular
control
of government.
These early
experiments in republican government carried
significant
flaws. Recalling their experience
as North American colonists with
British royal
power (including colonial governors and courts),
drafters
of the initial state constitutions
reposed excessive trust in
legislatures.
Checks and balances among branches of government
were more
theory than reality. Governors were
typically elected by (and thus
dependent on)
the legislative branches, and judicial power was
as yet
largely embryonic. Another flaw in the
original design was that
constitutions were
drafted by bodies that also served as legislative
bodies, thus blurring the line between
fundamental law and ordinary law.
However, in
1780 Massachusetts took a great step forward in
constitutional
design when its people elected
a convention to write a constitution which,
in
turn, was voted on in referendum.
The Articles
of Confederation
Even more daunting than
adopting state constitutions was the framing of
a government for the United States. When Great
Britain finally concluded
a peace treaty in
1783, letting the American colonies go, the nation
was
composed of 13 state governments. Early
nationalist sentiments soon
collided with
parochial interests, with suspicions of how
central power
might be used to the
disadvantage of individual states. Drafting of a
structure to link the states had begun in
1776, but it was 1778 before
the Articles of
Confederation were adopted and 1781 before all the
states
had agreed to that document. Distrust
of central power was manifest in
Article II,
which declared, State retains its sovereignty,
freedom,
and independence, and every power,
jurisdiction, and right, which is not
by this
Confederation expressly delegated to the United
States, in
Congress assembled.
The Articles
created a central government that proved feeble
and
ineffective. In Congress, each state,
regardless of population, had an
equal vote.
The state legislatures were allowed to decide how
delegates
to Congress were to be appointed,
and a state could recall and replace
its
representatives at any time for whatever reason it
chose. Congress
lacked the powers essential to
accomplishing national policies. It had
no
taxing power, having to rely instead on the
states' willingness to
provide funds – and the
states often proved unwilling. The vote of nine
of the 13 states was required for Congress to
exercise its powers, such
as making treaties
or borrowing money. Amendments to the Articles
required
the assent of all the states, giving
every state a liberum veto, that is,
sufficient veto power to paralyze democratic
process. Tiny Rhode Island
could thus thwart
the will of the other 12 states – as it did in
vetoing
a proposal to give Congress the power
to levy duties on imports.
In particular,
commercial rivalries spawned trade discrimination
among
the states. Landlocked states found
themselves at a notable disadvantage,
dependent upon states with good seaports.
James Madison likened New Jersey,
situated
between New York and Philadelphia, to
ends,and
North Carolina, between the deep harbors of
Hampton Roads and
Charleston, to
central
government was further highlighted by the lack of
executive or
judicial power to deal with
domestic disorder. For example, beginning in
1786, during a period of economic depression,
mobs of impoverished farmers
in western
Massachusetts prevented the courts from
functioning and
ordering foreclosures. Daniel
Shays, a farmer and former revolutionary
officer, led a force attempting to seize the
arsenal at Springfield but
was repulsed. In
general, perhaps no flaw in the Articles was as
glaring
as the inability of the central
government to act directly upon
individuals,
rather than hope for the states to act.
In
1785, Virginia and Maryland appointed
commissioners to settle disputes
over uses of
the Chesapeake Bay and its tributary rivers. These
delegates
then called for the states to be
invited to discuss whether a more
systemof
trade regulation might be in their ss
responded by calling a meeting at Annapolis in
1786. Only five states
attended that
meeting, and its members recommended that there
should be
a constitutional convention in
Philadelphia to consider what should be
done
the exigencies of the Union. ...
a
delegation, and other states followed suit,
forcing Congress's hand.
Finally, in February
1787, Congress endorsed the calling of a
convention.
Significantly, however, Congress's
resolution said that the convention
should
assemble the sole and express purpose of revising
the Articles
of Confederationand reporting to
Congress revisions which would become
effective only when agreed to in Congress and
confirmed by the states.
James Madison and the
Virginia Plan
In spite of the innate
conservatism of the states, however, once
assembled,
the convention proved decisive. A
remarkable group of 55 men assembled
in
Philadelphia in May 1787. Their grasp of issues
had been honed by wide
experience in public
life – over half had served in Congress, seven had
been state governors, and a number had been
involved in writing state
constitutions.
George Washington, the general from Virginia who
had led
the war against the British, brought
special prestige to the gathering
when he
agreed to serve as its presiding officer. Other
notables included
Alexander Hamilton (New
York), Benjamin Franklin (Pennsylvania), and
James Wilson (Pennsylvania). Perhaps the most
conspicuous absence was
Thomas Jefferson, who
had drafted the Declaration of Independence but
who
was now serving as the United States'
minister to Paris.
It soon became apparent
that the most important and respected voice at
the convention was that of James Madison, of
Virginia. Active in Virginia
politics, Madison
had acquired a national reputation as a member of
the
Continental Congress, where he was
instrumental in bringing about
Virginia's
cession of its claim to western territories,
creating a
national domain. Madison became
increasingly convinced that the liberty
of
Americans depended on the Union's being
sufficiently strong to defend
them from
foreign predators and, at home, to offset the
excesses of popular
government in the
individual states. No one came to Philadelphia
better
prepared. He had taken the lead in
seeing that the nation's best talent
was at
the convention. Moreover, in the weeks before the
meeting, he had
read deeply in the experiences
of ancient and modern confederacies and
had
written a memorandum on the
United
States.
Virginia's delegation to propose a plan
which, far from simply revising
the Articles,
would replace them with a national government of
sweeping
powers. Deriving its authority from
the people, Congress would have the
power
incompetent, or in which the harmony of the
United States may be
interrupted by the
exercise of individual r departing
from the
Articles, the Virginia Plan called for the new
Constitution to
be ratified, not by the state
legislatures, but by conventions elected
by
the people of the several states.
Resolving
themselves into a Committee of the Whole, the
delegates debated
the merits of the Virginia
Plan. Those urging an expansion of national
powers, led by Madison and James Wilson,
thought it essential to scrap
the unworkable
system of a central government attempting to
effect policy
through the states. Instead,
they asserted, the national government must
operate directly on individuals and, through
its executive and judicial
branches, be able
to enforce its laws and decrees. Principles of
individual equality, moreover, called for
representation in Congress to
be based on
population, thus abandoning parity among the
states. Madison
and his allies were hoping to
build upon a sense, widely held among the
delegates, that ad hoc or piecemeal reform of
the existing system would
no longer suffice.
Radical reform was, however, too bold for many
delegates from the smaller
states. While they
might concede the need for enlarging the powers of
the
central government, including giving it
the power to raise its own revenue
and to
regulate commerce, the smaller states feared
domination by the
large states. The central
question was that of representation. New
Jersey's William Paterson insisted that his
state could
confederate on the plan before the
committee.
continuing to insist on a
nationalist plan, it seemed possible that the
convention delegates, whatever their agreement
on other matters, might
founder on the issue
of representation.
The Great Compromise and
Other Compromises
On June 13, the Virginia
Plan, with some revisions, was reported out of
the Committee of the Whole. On June 15,
Paterson, speaking for the plan's
opponents,
introduced the New Jersey Plan. Under this plan,
each state
would have an equal vote in a
unicameral Congress. Resolving themselves
once
again into a Committee of the Whole, the delegates
debated the merits
of the Virginia and New
Jersey Plans. On June 19, the committee voted,
seven states to three (with Maryland divided),
to stay with the Virginia
Plan. The matter
remained unresolved, with votes settling into a
pattern
of six states (Massachusetts,
Pennsylvania, Virginia, the Carolinas, and
Georgia) against Connecticut, New York, New
Jersey, and Delaware, with
Maryland divided.
In late June, Connecticut's Oliver Ellsworth
proposed
a compromise – population to be the
basis for representation in one house,
the
states to have equality in the other.
In early July, the convention voted on
Connecticut's proposal for state
equality in
the senate, but the motion failed on an equal
division (with
Georgia divided). The
convention appeared to have arrived at deadlock.
Looking for a way out of the predicament,
South Carolina's Charles C.
Pinckney asked for
the appointment of a grand committee. That
committee
then ratified what has come to be
called the Great Compromise –
proportional
representation in the lower house, states'
equality in the
upper house. Even while the
larger states preferred representation based
on population as the basic rule, some of their
delegates preferred
compromise to risking a
walkout by small state delegates. Virginia's
George Mason said that he would
than see
the convention dissolved without agreement upon a
plan of
government. On July 16, the convention
voted for the compromise, five
states in
favor, four opposed, one divided (with New York
not present).
Notwithstanding grumbling by
some delegates from the larger states, the
most contentious issue had now been resolved,
and the convention could
move on to other
questions. Election of the executive proved a
thorny issue.
The Virginia Plan had provided
for an executive elected by the legislature;
this, however, would create a dependent
executive branch – a defect of
many of the
state constitutions. Few delegates were so bold as
to suppose
that direct election by the people
was a wise move. Ultimately, the
convention
opted for a device – an awkward one to the modern
mind – of
having an electoral college choose
the president. Each state was entitled,
by
whatever method it pleased, to select electors
equal in number to the
number of that state's
senators and representatives. The electors would
meet in their respective states and vote for
the president and vice
president. The
subsequent rise of political parties, however, has
ended
the framers' notion that electors would
actually deliberate on their
choices for
national leadership.
On July 24, the
convention appointed five members to a Committee
of Detail,
whose job it was to draft an actual
constitution embodying the fundamental
principles thus far approved by the whole
body. The committee's members
seem to have
assumed that they were at liberty to make
substantive changes
of their own. The most
important of these was, in place of a general
statement of Congress's powers, a clear
enumeration of its powers. Leading
the list
were the power to tax and the power to regulate
interstate and
foreign commerce – two of the
basic reasons that had brought the delegates
to Philadelphia in the first place.
Sectional differences surfaced during the
convention's latter weeks.
Southern states,
dependent on the export of agricultural
commodities,
wanted to forbid Congress's
taxing exports, and they wanted to protect
slavery and the slave trade. In late August,
the convention agreed to a
ban on taxes
on exports and a prohibition on interference with
the slave
trade until the year 1808. Slavery
was the unwelcome guest at the
convention's
table. Nowhere does the Constitution use the word
or
northern views on representation, the
convention decided that, in
apportioning
representatives, to the number of
added three-
fifths of other Persons– that is, slaves. Some of
the
delegates thought slavery a blot on the
nation's moral conscience, but
they concluded,
reluctantly, that a stronger stand on slavery
would mean
rejection of the proposed
Constitution in the southern states and thus
the prospect of the Union's dissolution. How
to resolve the burning issue
of slavery was
thus postponed, to be settled decades later by
civil war
and reconstruction.
On September
8, a Committee on Style was appointed to polish
the
Constitution's language and to arrange its
articles. When that committee
reported, George
Mason, the author of Virginia's 1776 Declaration
of
Rights, argued that the federal document
should also have a bill of rights
that would
specify and protect the rights of individual
citizens. Others
argued, however, that nothing
in the Constitution would infringe the
rights
guaranteed in the state constitutions. Mason's
proposal was
rejected, although it would be
revived during the ratification debates.
The
convention was moving to its conclusion. On
September 17, Benjamin
Franklin, at age 81 the
convention's patriarch, pleaded with anyone who
had some reservations about the meeting's
product to
his own
infallibility.
Constitution's proponents wanted
a unanimous result. Of the 42 members
(of the
original 55) still present on September 17, all
but three signed
the final document. As
representatives from each state had concurred in
the result, Gouverneur Morris devised the
formula in Convention by
the Unanimous Consent
of the States present
How the Federalist Papers
Persuaded a Nation
Following the course set
out in the Virginia Plan, the Philadelphia
convention proposed having the people elect
state conventions to pass upon
the proposed
Constitution. After some hesitation, the expiring
Continental Congress forwarded the
Constitution to the states for their
approval.
Once again, as before and during the 1787
convention, Madison
took the leading role.
Knowing that ratification in Pennsylvania,
Massachusetts, and Virginia was critical,
Madison helped orchestrate the
convening of
the state meetings. Several small states, Delaware
leading
the way, acted quickly, but, as time
passed, opponents – known as the
anti-
Federalists – began to mount their own campaign.
Chief among their
complaints were the
failure to include a bill of rights and the fear
that
a
Massachusetts, the Federalists
acceded to recommendations for amendments
which could be added after ratification was
complete.
New York seemed especially fertile
ground for the anti-Federalists.
Madison,
Hamilton, and John Jay wrote a series of essays,
published in
New York newspapers, making the
case for ratification. These essays,
subsequently collected and published as the
famous
Federalist Papers
,
stand as the
classic exposition of the foundations of
constitutional
government in the United
States. In Virginia, Madison, joined by John
Marshall and Edmund Randolph, had to fend off
a sharp attack on the new
Constitution draft
led by Patrick Henry and George Mason. The result
there
was a close one, 89-79. New York, where
Governor George Clinton and his
allies
bitterly opposed the Constitution, ratified by an
even closer vote,
30-27. In eight months, all
but two states had approved the Constitution.
Eventually North Carolina (in 1789) and even
Rhode Island (in 1790)
ratified. In the
meantime, in September 1788, the Continental
Congress
resolved that the new Constitution
should be put into effect. In January
1789,
the first presidential electors met in the several
states, and their
unanimous choice for
president was George Washington. In April 1789,
Washington was sworn in as the first president
of the United States.
Implicit in the
Federalists' campaign for the Constitution was an
understanding that a bill of rights –
provisions clarifying the rights
of
individuals in the new nation – would be added
when the new government
got under way. As a
member of the House of Representatives in the
first
Congress, Madison moved to redeem that
implicit pledge by proposing a list
of
amendments to be submitted to the states. Sifting
the various proposals
which had come out of
the ratifying conventions, Madison produced the
amendments which, as ratified, became the
Constitution's first 10
amendments – what we
call the Bill of Rights. Chief among these are
protections for free speech and press, freedom
of religion, guarantees
of fairness in
criminal trials, and the admonition that the
listing of
specific rights was not to be read
as precluding the existence of other
rights
retained by the people – a reflection of
which, in the 18th century, implied that
people had certain
rights.
An Adaptable
Document
The Constitution's influence was
immediately felt beyond the borders of
the
United States. The adoption of a written
constitution became
intrinsically identified
with aspirations to self-government. On May 3,
1791, Poland produced Europe's first written
constitution, followed soon
thereafter
by France. Not surprisingly the American
experience was often
cited in other countries'
debates on the drafting of their own
constitutions. In Germany, for example, the
delegates who met at
Frankfurt's Paulskirche
in 1848-49 frequently invoked American ideas in
shaping their proposed constitution. No one,
in France, Germany, or
elsewhere, supposed, of
course, that one should simply copy the American
model. Any constitution, to be viable, must be
grounded in a country's
own history, culture,
and traditions. But the American Constitution,
especially as implemented with key
interpretations by the courts over more
than
two centuries, has undoubtedly helped frame debate
over fundamental
laws in other places.
What contributions did the Philadelphia
delegates, and those who have
followed after,
make to constitutional democracy at home and
abroad? Among
those contributions are the
following:
1.
The Constitution, with
its explicit reference to its being ordained
by
2. The Constitution declares that it,
and laws enacted
thereof,shall be the Law of
the ented by judicial
review – the courts'
power to invalidate laws found to be in conflict
with the Constitution – this principle ensures
that constitutional
guarantees protect
minority rights and liberty even against
democratically elected majorities.
3. The
Constitution's text – and the debates over its
drafting – remind
us that institution and
structure are fundamental to balancing society's
need for order with individual liberty.
Limited government finds
handmaidens in
Madisonian concepts such as separation of powers
and checks
and balances – that is, the
apportionment of real power and authority
among the executive, the legislative, and
judicial branches of
government.
4. Partly
through practical compromise, the Constitution
aims at creating
a central government with
sufficient energy, while preserving citizens'
ability to speak to local issues at the local
level. Federalism in its
various forms (such
as devolution) – that is, the retention of viable
state and local governments as well as the
structure of a federal
government – has proved
increasingly attractive as a way of balancing
national and local needs in many nations.
Various reasons account for the success of the
1787 convention.
Disagreeing on some important
issues, the delegates nonetheless largely
shared a sense of common purpose. They proved
able to rise above parochial
interests
to serve the greater good. Leadership proved
critical. Madison,
going into the convention
with nationalist goals, was willing to
accommodate himself to the convention's result
and argue forcefully for
the partly national,
partly federal arrangement.
Britain's Prime
Minister William Gladstone has been quoted as
calling the
Constitution wonderful work ever
struck off at a given time by
the brain and
purpose of encomium may be a bit rococo for
modern
tastes, but there is little doubt that
the Philadelphia delegates produced
one of
history's most durable and influential documents.
It has proved,
as John Marshall, the nation's
third chief justice, urged, adaptable to
the
great crises of a great nation. Scholars sometimes
speak of
– those catalytic events which frame
the
fundamental contours of a polity. If there
are such things as
moments,then the 1787
convention was surely one of them.
Widely
acknowledged as an expert in the fields of
constitutional law,
comparative
constitutionalism, and the Supreme Court, A. E.
Dick Howard
is a professor of law and public
affairs at the University of Virginia.
After
graduating from law school at the University of
Virginia, he was
a law clerk to Justice Hugo
L. Black of the Supreme Court of the United
States. Professor Howard was executive
director of the commission that
wrote
Virginia's current constitution, and he has
briefed and argued cases
before state and
federal courts, including the Supreme Court of the
United
States. Recent works include
Democracy's Dawn
and
Constitution-
making in
Eastern Europe
.
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