12 Constitutions and Contracts: Is another new contract really necessary?

If the Articles are not working, what do we do next?

Fifty-five delegates arrived at Philadelphia in May 1787 tasked with reworking the Articles of Confederation.  It was apparent that the very loose confederation of states and the weak central government would not work as a long term solution for governing the new nation. Throughout the long, hot Philadelphia summer, delegations from twelve states discussed, debated, and finally worked out a new blueprint for the nation–designed to resolve conflicts between small and large states, northern and southern states, and those favoring a strong federal government with those arguing for state sovereignty.

Many delegates to what is now called the Constitutional Convention wanted to strengthen the role and authority of the central government but feared allowing too much centralized power. They intended to preserve state autonomy without preventing states from working collectively. They wanted to protect the political rights of all free men but also feared mob rule, a potential result of Shays’ Rebellion had it succeeded. Delegates replaced the Articles of Confederation rather than make revisions. Although James Madison is known as the father of this new contract–the Constitution–George Washington’s support gave the convention and the Constitution hope of success due to his perceived sense of fairness, his overall credibility and his reputation as a non-partisan leader. 

After rejecting a unitary government (monarchy) and living with the weaknesses of confederation government (during the Revolution), the delegates opted for a federal system with a strong central government balanced by state and local power.  Each of these levels of the federal structure would employ separation of power as well as checks and balances between branches. Division of power between branches of government and between the federal and state governments, slavery, trade, taxes, foreign affairs, representation, and even the procedure to elect a president were just a few of the contentious issues of the convention.  Diverging plans, strong egos, regional demands, and states’ rights made solutions difficult. Five months of debate, compromise, and creative strategies produced a new constitution creating a federal representative republic with a strong central government, leaving most of the power with the state governments.

Ten months of public and private debate were required to secure ratification by the minimum nine states. Even then Rhode Island and North Carolina held out until after the adoption of a Bill of Rights.

The structure of government impacts the function (day-to-day business) of government. Countries must make this important decision about which structure of government to employ before working on the details of how this organizational structure will carry out the basic functions of governing.

No decision about structure, function, or agenda for the new Republic’s government was easy. Delegates from small states did not want their interests pushed aside by populous states like Virginia. Everyone was concerned about slavery no matter which side of this contentious issue was supported. Representatives from southern states worried that delegates from free states might try to outlaw slavery nationwide. Conversely, free states feared southerners might attempt to make slavery permanent. They all agreed on the election of George Washington, former commander of the Continental Army and hero of the American Revolution, as the president of the convention.  A core question needed to be answered.  If you intend to implement a representative republic, how do you represent all states and citizens in a fair and equitable manner regardless of the geographical size or population of each state?

How do you organize representation in a republic?

The Constitution consists of a preamble and seven articles. The first three articles divide the national government into three branches—the legislative branch, the executive branch, and the federal judiciary—and describe the powers and responsibilities of each. In Article I, ten sections describe the structure of Congress, the basis for representation and the requirements for serving in Congress, the length of Congressional terms, and the powers of Congress. The national legislature created by the article reflects the compromises reached by the delegates regarding such issues as representation, slavery, and national power.

The delegates from Virginia called for a bicameral legislature consisting of two chambers, with a state’s representatives in each chamber based on the state’s population. Delegates from small states objected to this Virginia Plan. Another proposal, the New Jersey Plan, called for a unicameral legislature with one chamber and each state possessing one vote (a weakness already observed under the Articles of Confederation). Thus, smaller states would have the same power in the national legislature as larger states. However, the larger states argued that because they had more residents, they should be allotted more legislators to represent their interests. They argued populations should be represented proportionally–equal access by individual citizen rather than equal share of power by states. Senators were to be appointed by state legislatures, a variation on the Virginia Plan, and members of the House of Representatives would be popularly elected by the voters in each state.

As evidence the delegates were considering and incorporating every conceivable controversy of representative government, consider Alexander Hamilton’s concerns about state rivalry and dissension.

Hamilton goes on to support his position with numerous historical examples over thousands of years of collective human experience with governing.  Hamilton speaks eloquently of “dissensions between the States,” which is evidenced in the controversy over representation.  Ultimately, compromise was achieved.

The Connecticut or Great Compromise (suggested by Roger Sherman of Connecticut) effectively combined the New Jersey and Virginia Plans–a bicameral (two chambered) legislative body with a Senate where each state, regardless of size or population, received equal representation (2 senators for each state) and a House of Representatives where each state’s population was counted to ensure proportional representation (total number of representatives divided proportionally between the states).

The Great Compromise that determined the structure of Congress soon led to another debate, however. When states took a census of their population for the purpose of allotting House representatives, should slaves be counted? Southern states were adamant that they should be, while delegates from northern states were vehemently opposed, arguing that representatives from southern states would not represent the interests of enslaved people. If slaves were not counted, however, southern states would have far fewer representatives in the House than northern states did. For example, if South Carolina were allotted representatives based solely on its free population, it would receive only half the number it would have received if slaves, who made up approximately 43 percent of the population, were included.^[4]

How do we reconcile slavery and unalienable rights?

Slavery was another fundamental division separating states. Many delegates believed slavery contradicted the ideals of the Declaration of Independence. How can you reconcile the ideal of unalienable rights with the notion that some human beings are property? None of the southern states had abolished slavery and none wanted the new Constitution to interfere. Southern states developed their economy with a dependence on slavery–the cheapest possible labor.  Other states hoped to abolish slavery entirely.  Again, pragmatic compromise effectively perpetuated the institution of slavery and pushed the controversy off to a future reckoning.

The three-fifths compromise allowed slaves to be taxed as property and counted as population for purposes of a state’s representation in the government. This compromise resolved the impasse without truly satisfying anyone. For purposes of congressional representation, slaveholding states could count all their free population, including free African Americans and 60 percent (three-fifths) of their enslaved population. To mollify the north, the compromise allowed counting 60 percent of a state’s slave population for federal taxation, although no such taxes were ever collected. Another compromise granted Congress the right to impose taxes on imports in exchange for a twenty-year prohibition on laws attempting to ban the importation of slaves to the United States, which would hurt the economy of southern states more than that of northern states. Because the southern states, especially South Carolina, had made it clear they would leave the convention if abolition were attempted, no serious effort was made by the framers to abolish slavery in the new nation, even though many delegates disapproved of the institution.

The Library of Congress in Creating the United States: Convention and Ratification notes,

On August 21 the debate over the issue of commerce became very closely linked to another explosive issue–slavery. When Luther Martin of Maryland proposed a tax on slave importation, the convention was thrust into a strident discussion of the institution of slavery and its moral and economic relationship to the new government. John Rutledge of South Carolina, asserting that slavery had nothing at all to do with morality, declared, “Interest alone is the governing principle with nations.” Roger Sherman of Connecticut was for dropping the tender issue altogether before it jeopardized the convention. George Mason of Virginia expressed concern over unlimited importation of slaves but later indicated that he also favored federal protection of slave property already held. This nagging issue of possible federal intervention in slave traffic, which Sherman and others feared could irrevocably split northern and southern delegates, was settled by, in Mason’s words, “a bargain.” Mason later wrote that delegates from South Carolina and Georgia, who most feared federal meddling in the slave trade, made a deal with delegates from the New England states. In exchange for the New Englanders’ support for continuing slave importation for 20 years, the southerners accepted a clause that required only a simple majority vote on navigation laws, a crippling blow to southern economic interests.

The bargain was also a crippling blow to those working to abolish slavery. Congregationalist minister and abolitionist Samuel Hopkins of Connecticut charged that the convention had sold out: “How does it appear . . . that these States, who have been fighting for liberty and consider themselves as the highest and most noble example of zeal for it, cannot agree in any political Constitution, unless it indulge and authorize them to enslave their fellow men . . . Ah! these unclean spirits, like frogs, they, like the Furies of the poets are spreading discord, and exciting men to contention and war.” Hopkins considered the Constitution a document fit for the flames.

On August 31 a weary George Mason, who had 3 months earlier written so expectantly to his son about the “great Business now before us,” bitterly exclaimed that he “would sooner chop off his right hand than put it to the Constitution as it now stands.”

The Constitution contained protections for slavery. Article I postponed the abolition of the foreign slave trade until 1808 (the importation clause); and, in the interim, those in slaveholding states were allowed to import as many slaves as they wished.^[5]

Furthermore, the Constitution placed no restrictions on the domestic slave trade, so residents of one state could still sell enslaved people to other states. Article IV of the Constitution—which, among other things, required states to return fugitives to the states where they had been charged with crimes—also prevented slaves from gaining their freedom by escaping to states where slavery had been abolished–clause 3 of Article IV (known as the fugitive slave clause) allowed slave owners to reclaim their human property in the states where slaves had fled.^[6]

The Constitution also gave the federal government control over all “Territory or other Property belonging to the United States.” This would prove problematic when, as the United States expanded westward and population growth led to an increase in the power of the northern states in Congress, the federal government sought to restrict the expansion of slavery into newly acquired territories.

Realizing that flaws in the Articles of Confederation could harm the new country and recognizing that the Articles could not easily be revised as originally intended, delegates from the states who met in Philadelphia from May through September 1787 set about drafting a new governing contract. The United States that emerged from the Constitutional Convention in September was not a confederation.  It was a republic with a strengthened government. Congress had been transformed into a bicameral legislature with additional powers, and a national judicial system had been created.

To satisfy the concerns of those fearing a strong central government, the framers of the Constitution created a system with separation of powers and checks and balances. Although such measures satisfied many, concerns still lingered that the federal government remained too powerful.