The Constitutional Convention

The Philadelphia Convention, which met in May 1787, was officially called for by the old Congress solely to remedy defects in the Articles of Confederation. But the Virginia Plan presented by the Virginia delegates went beyond revision and boldly proposed to introduce a new, national government in place of the existing confederation. The convention thus immediately faced the question of whether the United States was to be a country in the modern sense or would continue as a weak federation of autonomous and equal states represented in a single chamber, which was the principle embodied in the New Jersey Plan presented by several small states. This decision was effectively made when a compromise plan for a bicameral legislature—one house with representation based on population and one with equal representation for all states—was approved in mid-July. Though neither plan prevailed, the new national government in its final form was endowed with broad powers that made it indisputably national and superior.

The Constitution, as it emerged after a summer of debate, embodied a much stronger principle of separation of powers than was generally to be found in the state constitutions. The chief executive was to be a single figure (a composite executive was discussed and rejected) and was to be elected by the Electoral College, meeting in the states. This followed much debate over the Virginia Plan’s preference for legislative election. The principal control on the chief executive, or president, against violation of the Constitution was the rather remote threat of impeachment (to which James Madison attached great importance). The Virginia Plan’s proposal that representation be proportional to population in both houses was severely modified by the retention of equal representation for each state in the Senate. But the question of whether to count enslaved people in the population was abrasive. After some contention, antislavery forces gave way to a compromise by which three-fifths of enslaved people would be counted as population for purposes of representation (and direct taxation). Slave states would thus be perpetually overrepresented in national politics; provision was also added for a law permitting the recapture of escaped enslaved people (“fugitive slaves”), though in deference to republican scruples the word slaves was not used. (See also Sidebar: The Founding Fathers and Slavery.)

Contemporary theory expected the legislature to be the most powerful branch of government. Thus, to balance the system, the executive was given a veto, and a judicial system with powers of review was established. It was also implicit in the structure that the new federal judiciary would have power to veto any state laws that conflicted either with the Constitution or with federal statutes. States were forbidden to pass laws impairing obligations of contract—a measure aimed at encouraging capital—and the Congress could pass no ex post facto law. But the Congress was endowed with the basic powers of a modern—and sovereign—government. This was a republic, and the United States could confer no aristocratic titles of honour. The prospect of eventual enlargement of federal power appeared in the clause giving the Congress powers to pass legislation “necessary and proper” for implementing the general purposes of the Constitution.

The states retained their civil jurisdiction, but there was an emphatic shift of the political centre of gravity to the federal government, of which the most fundamental indication was the universal understanding that this government would act directly on citizens, as individuals, throughout all the states, regardless of state authority. The language of the Constitution told of the new style: it began, “We the people of the United States,” rather than “We the people of New Hampshire, Massachusetts, etc.”

The draft Constitution aroused widespread opposition. Anti-Federalists—so called because their opponents deftly seized the appellation of “Federalists,” though they were really nationalists—were strong in states such as Virginia, New York, and Massachusetts, where the economy was relatively successful and many people saw little need for such extreme remedies. Anti-Federalists also expressed fears—here touches of class conflict certainly arose—that the new government would fall into the hands of merchants and men of money. Many good republicans detected oligarchy in the structure of the Senate, with its six-year terms. The absence of a bill of rights aroused deep fears of central power. The Federalists, however, had the advantages of communications, the press, organization, and, generally, the better of the argument. Anti-Federalists also suffered the disadvantage of having no internal coherence or unified purpose.

The debate gave rise to a very intensive literature, much of it at a very high level. The most sustained pro-Federalist argument, written mainly by Hamilton and Madison (assisted by Jay) under the pseudonym Publius, appeared in the newspapers as The Federalist. These essays attacked the feebleness of the confederation and claimed that the new Constitution would have advantages for all sectors of society while threatening none. In the course of the debate, they passed from a strongly nationalist standpoint to one that showed more respect for the idea of a mixed form of government that would safeguard the states. Madison contributed assurances that a multiplicity of interests would counteract each other, preventing the consolidation of power continually charged by their enemies.

The Bill of Rights, steered through the first Congress by Madison’s diplomacy, mollified much of the latent opposition. These first 10 amendments, ratified in 1791, adopted into the Constitution the basic English common-law rights that Americans had fought for. But they did more. Unlike Britain, the United States secured a guarantee of freedom for the press and the right of (peaceable) assembly. Also unlike Britain, church and state were formally separated in a clause that seemed to set equal value on nonestablishment of religion and its free exercise. (This left the states free to maintain their own establishments.)

In state conventions held through the winter of 1787 to the summer of 1788, the Constitution was ratified by the necessary minimum of nine states. But the vote was desperately close in Virginia and New York, respectively the 10th and 11th states to ratify, and without them the whole scheme would have been built on sand.