by Ron Carter
Washington raised his head and cleared his throat. “Debate is open.”
Luther Martin rose. “The Articles of Confederation were ratified by all thirteen states. It is unthinkable that this new constitution should be ratified by less.”
Daniel Carroll of Maryland called, “Fill in the blank with the number thirteen! Unanimity will be essential to dissolve the existing confederacy, since all thirteen states ratified it.”
Roger Sherman shook his head. “The hard practicality is that if all thirteen states must ratify, the new constitution is doomed, since Rhode Island has in its entire history never cooperated with the other twelve states on issues such as this. Nor has that state even sent delegates to this convention! Their vote will either be ‘nay,’ or no vote at all, which is also a ‘nay.’ I propose the blank be filled with the number ten.”
Gouverneur Morris rose, his wooden leg thumping. “I move that we strike the requirement that the new constitution receive the approbation of Congress before being submitted to the state conventions. Rhode Island will have representation in Congress, and assuredly they will not lend their approbation. That being true, the constitution will never reach the people for their ratification.”
“Second the motion.”
The vote was unanimous in favor. The constitution would go directly to the Confederation Congress then in session, but not for debate, vote, or approbation. Only for them to acknowledge it and forward it on to state conventions, convened for the purpose of ratification by the people. The sole remaining issues were how many states would be required to achieve ratification, and, what would be the process for ratification?
James Wilson tilted his head to peer over his spectacles. “What is the problem? Seven states is a majority. Seven should be sufficient to ratify.”
Edmund Randolph objected. “Seven is too narrow a margin. Nine is more respectable. It should be nine states.”
The room quieted for a short time while the delegates pondered how Randolph had arrived at the number, nine. The answer came to most of them. Rhode Island would not ratify, which eliminated the number thirteen. Seven was a simple majority, but nine, a strong majority, seemed more appropriate for so important an issue.
The vote was called and recorded. The vote of nine states could ratify the constitution.
The last thorny question now lay before them. Who should ratify?
Elbridge Gerry stood, dour, face drawn down into its perpetual frown. “Ratification cannot be left to the people at large! Their ideas of sound government are the wildest in the world!”
Nathaniel Gorham disagreed. “Leave it to the legislatures, and the local politicians who benefit from the system as it is will find some way to block ratification, to protect their own self interests. It must finally be a matter for the people, not the politicians.”
In succession, George Mason, followed by James Madison, rose to take the same position.
“Referring the plan to the authority of the people is essential. The legislatures have no power to ratify it. They are the mere creatures of the state constitution and cannot be greater than their creators. I consider the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution!”
Talk ceased. The issue was framed. The vote was called for and taken. The ratification of the new constitution would come from the people, in conventions held for that purpose in each state.
In short order the delegates handled the question of whether a state delegate could also serve as a national delegate. Too many remembered the corruption that had been brought about in England, when a man in a prominent political position was allowed to seek influence in other branches of the government, either for himself or his friends, with the result that a small clique of men enjoyed most of the power—to the downfall of the system. In the United States, that was not going to happen. State delegates could not at the same time be national delegates in any capacity. Checks and balances, always, always, always.
With the conclusion of the convention in sight, the delegates settled in to resolve the prickly question of how the President should be elected. That it was to be one man had already been decided. But how to pick that man? That was the question. The thought of granting pivotal powers to a single man made every delegate in the convention nervous, uneasy, for every man among them understood that nothing will corrupt a man more quickly or more completely than power, or the lust for it.
A proposed resolution of the problem came from the Committee on Postponed Matters and was reported on the floor of the convention by the chairman, Judge David Brearly of New Jersey. On September fourth, at the behest of Washington, Brearly laid out the work of the committee.
The President would serve for four years, with no restriction against reelection. He would be elected by the vote of electors equal in number to the Senators and Representatives from each state, and chosen by each state in a mode to be decided by that state. Should there be a tied vote, the Senate would decide. There would also be a new office, never before mentioned in the convention, titled Vice President, who would be ex-officio President of the Senate. The President must be at least thirty-five years of age, a natural born citizen of the United States, and a resident therein for at least fourteen years. He could be impeached by the House and tried and convicted by the Senate. He, the President, and not the Senate, was empowered to make treaties with the concurrence of two-thirds of the Senate. He would be vested with power to appoint judges and ambassadors, subject to advise and consent of the Senate, and to make treaties with foreign nations, also subject to the advise and consent of the Senate.
Portions of the Brearly proposal caught the convention by surprise. What was this new, cumbersome notion of electing people to elect the President? An electoral college? They recalled that James Wilson had earlier suggested a similar plan, but it had received little attention and no vote. The delegates wrestled with it, defined it, and tried to accept it. There had been no less than seven separate proposals for how to elect the President, and each of them were fatally flawed. At least twelve different votes had been taken in the past three months, and not one of the proposals had survived. The delegates shook their heads at this latest awkward proposal, then decided they needed more time, and returned it to the postponed matters agenda.
And what of the sweeping powers proposed to be vested in the President? One man. How long before “Mr. President” would become “Your Majesty”? Some delegates squirmed at the thought, while others faced the hard reality. If the new government was to be founded on three separate branches, the legislative, judicial, and executive, each empowered to check and balance the other, then the executive must be given its due. They came to a conclusion slowly, but surely. Give the president powers equal to those of the legislative and judicial arms of the government, and trust the people to get rid of despots who sought the presidency to corrupt it. It was a giant leap of faith in the common people, but the delegates accepted the concept, and moved on.
What was to be done with the Indians?—the natives who greeted the first whites to arrive only to find themselves steadily driven back, westward, steadily losing their land to the white man’s voracious appetite for space. They had struck back the only way they understood, with raids and depredations on the white settlers, and had turned to making treaties and agreements with the Spanish for arms and ammunition. What was to be done to provide recourse and redress to the Indians for the wrongs done them by the western states, and to stop the sporadic, ongoing fighting? The answer was simple. They would have the status of a “foreign nation” and the right to treaty with them was given exclusively to the new government, to the exclusion of the various states. Few paid attention to the irony of seizing the land from those who had occupied it from ancient antiquity, and then declaring them to be the foreigners!
George Mason, Benjamin Franklin, George Washington, and others, had spent many hours pondering two harsh
truths. No instrument of government created by men had ever been perfect, and, it was inevitable that time would bring changes in human affairs. What if the constitution was flawed? And what if changing times and thought made it obsolete? What was to be done?
The profoundly gifted George Mason of Virginia stated the solution with crystal clarity.
“The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments, therefore, will be necessary, and it will be better to provide for them in an easy, regular, and constitutional way, than to trust to chance and violence.”
Instantly heads nodded in vigorous agreement, then stopped as thoughtful men asked the obvious questions. How is it to be amended, and when? If the process of amendment were made too easy, it would invite proposed amendments with every passing whim. If it were too difficult, the Constitution might be so rigid the people would reject it. Further, who could amend? The state legislatures? The new Congress? The delegates scratched their heads and cast about for answers.
Alexander Hamilton of New York called it out. “The state legislatures will not apply for amendments, except to increase their own powers. The national legislature will be the first to perceive the true need for amendment, and will be most sensible to the necessity of doing it.”
The result? A compromise. Another compromise. The delegates had learned well that the art of creating new nations, and politics, is grounded on the principle of compromise.
James Madison made it simple. Both the national congress and the state legislatures could propose amendments to the Constitution, but no amendment would be effective until approved by three-fourths of the states. The clearer minds in the small states added one more provision—since each state had two senators, which gave the small states power in that branch of the new government equal to the large states, the small states wanted a guarantee that proposed amendments to the Constitution could not be adopted without the consent of the small states. The large states compromised once more. The guarantee was granted.
With minds swamped by their swift march through the last details of creating a new government, on Saturday, September eighth, the delegates realized the time had arrived to create the final draft of the Constitution. How to handle it? Appoint another committee, of course, this time to be called the Committee of Stile and Arrangement. Five men. William Samuel Johnson to serve as chairman, with Alexander Hamilton, Gouverneur Morris, James Madison, and Rufus King as committee members.
In the heat of the afternoon Washington spoke from the dais. “We stand adjourned until Monday morning, the usual hour.”
While the other delegates gratefully took their leave of the hot, stale room, the five-man committee gathered for a time, to decide when they would meet, and where, to reduce the mind-boggling gathering of notes to an organized, understandable, simple document that would be suited to the highest and lowest intellects in the United States. As they stood huddled around the desk of William Johnson, Benjamin Franklin stalked slowly up the aisle, cane clicking on the floor with each step, to peer at the chair in which George Washington sat on the dais.
It was a large wooden chair, sturdy, straight backed, no-nonsense, with leather-padded arms, scant adornment, with one exception. The back of the chair was topped with a small rise on which appeared a carefully painted sun, the bottom half hidden as though by a distant skyline. The rays of the sun spread evenly across the back, reaching in all directions. Franklin stood before the chair, adjusted his spectacles, and leaned forward on his cane to examine the painting with great care before he nodded his satisfaction and slowly made his way out of the East Room.
Monday found the convention still locked in the give and take of small, insignificant details that spilled over through Tuesday, September eleventh. In the late afternoon, Washington announced, “We stand adjourned until tomorrow morning, the usual hour, at which time the Committee of Stile and Arrangement will make its report.”
The final days were upon them. What would the last draft of their historic summer look like? What had the committee done with the draft delivered by the Committee of Detail on August sixth, and which had been added upon by the convention since that time with a disorganized collection of ideas on nation-making, the like of which the world had never seen? Only the five-man committee, and David Claypoole, who had printed several hundred copies of the work of the committee on four pages, one side only, knew the answer.
No day held the anticipation of the delegates like Wednesday morning, September twelfth, 1787, as they gathered once again in the muggy heat of the sealed East Room.
Washington took his seat on the dais. “The first order of business is the report of the Committee of Stile and Arrangement. Mr. Johnson, do you have the report?”
Johnson rose. “I do, sir.” He held up the stack of printed documents. “Request permission to pass out a copy of the work to each member present.”
“Granted.”
Within minutes each delegate had a copy of the document spread on his desk, and leaned forward, locked in silence, with an intensity seldom seen during the convention while he slowly, thoughtfully read the document.
The preamble no longer named all thirteen states. Rather, it stated with simple dignity, “We the people of the United States . . . ” The twenty-three articles of the prior draft of August sixth, which had covered seven printed pages, had been reduced to seven articles in language that was plain, simple, unmistakable, within the grasp of most Americans, and were complete on four pages. It flowed with an ease that bespoke a master craftsman, and it was soon understood that most of the genius in the document had flowed from the mind and quill of Gouverneur Morris.
Article One. All legislative powers herein granted shall be vested in a Congress of the United States. . . .
Article Two. The executive power shall be vested in a president. . . .
Article Three. The judicial power of the United States shall be vested in one supreme Court. . . .
Article Four. New states may be admitted by the Congress into this union. . . .
Article Five. The Congress shall propose amendments to this constitution. . . .
Article Six. This constitution shall be the supreme law of the land. . . .
Article Seven. The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution.
Every man in the room would remember for the rest of his life the price that had been paid to create those four pages. The heat, the acrimonious debates, the two times the convention had exploded into a division between the north and the south that came within a whisper of destroying the United States altogether, the brutal words that had boiled over between avid opponents—they would never forget them. But now, they marveled at the skill with which the committee had removed all trace of the anger and the frustration and had set aside the animosities between north and south, large states and small, slaveholders and non-slaveholders. They read and reread the passages that anticipated and closed every door that might allow tyranny or corruption or conspiracy to creep into the new government, stunned by the simplicity and the thoroughness with which the convoluted, complicated provisions had been spelled out. The checks and balances were all in place, ensuring that no branch of the government or any inidividual could ever rise above another to become tyrannical.
And finally, the single provision that separated their new nation from any other in the world. The power of the government was vested in the people. The common people who ran the farms, and the shops, and fisheries. In the known history of the human race, no government had ever taken such a leap of faith.
For several minutes a hush held in the East Room. Every man present sensed a feeling in his soul that rose in his breast to hold him silent. What had they created? No one had gotten everything he had contended for, but everyone had gotten something. Some were satisfied with it, some disgruntled, a few disappointed. Some reckoned it was the work of fifty-five men who had reached inside
themselves for the best they had. Others remembered the words of John Adams: “God is the great legislator of the universe.”
Washington waited until the unexpected spirit ebbed before moving on. It was George Mason of Virginia who loudly stated what he conceived as being the one missing provision, without which the constitution would not be complete.
“The constitution is to be paramount to state constitutions and declarations of rights. For that reason, I wish the plan was prefaced with a bill of rights. And I would second a motion if made for the purpose. It would give great quiet to the people.” Patiently Mason continued, “Freedom of speech, freedom of religion, the right to a fair trial, these and other liberties ought to be defined in a bill of rights. Eight state constitutions already have such guarantees. It should be one of the cornerstones of this new government.”
Roger Sherman rose, thoughtfully tugging at his chin. “I am for securing the rights of the people where requisite. But the state declarations of rights are not repealed by this constitution. They are sufficient.”
Murmuring was heard and questions quietly asked between the delegates. “Why is a bill of rights necessary? The states already have them, and the rights of the people are all protected by the document as it now stands.”
The vote was called, and to the amazement and embarrassment of Mason, the vote was unanimous against any such bill. Even his native state of Virginia had voted against it. Any bill of rights would have to wait.
For the next two days the delegates scrambled to finish the housekeeping detail of adding a word here, changing a word there, deleting a word now and again. Debate was nearly non-existent in their overwhelming desire to finish their work and go home. Four months away from home, wives, business, and family, locked inside a sealed room in the heat of a Philadelphia summer, had been enough. At the close of the day of Saturday, September fifteenth, every man in the room fervently hoped all the delegates would sign the document when it was completed, but it was not to be. Three of their number loudly proclaimed their intent not to sign.
