by Ray Raphael
It is really an assembly of demigods.
—Thomas Jefferson to John Adams, referring to the men appointed to the Federal Convention1
This convention, composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.
—John Jay, The Federalist No. 2
[The] framers [were] a race of statesmen—patriots, with the good of the whole country at the bottom of every act—not politicians merely, not men representing and fighting for State, local, or party, or individual interests.
—John Robert Irelan, The Republic, or, A History of the United States of America, an 18-volume text from 18882
They [the well-known founders] were America’s first and, in many respects, its only natural aristocracy….
—Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (2000)3
Kernel of Truth
Every one of the framers of the United States Constitution had the good of the nation at heart. They had come to Philadelphia in 1787 with a common purpose: to improve the workings of government. The Articles of Confederation, said Edmund Randolph in his speech introducing the Virginia Plan, had been written at a time “when the inefficiency of requisitions was unknown—no commercial discord had arisen among any states—no rebellion had appeared as in Massts.—foreign debts had not become urgent—the havoc of paper money had not been foreseen—treaties had not been violated.” To deal with problems such as these, he declared, Americans would have to alter the rules of the game so the “jealousy of the states” did not impede governing for the common good. Not a single framer disagreed with this basic sentiment.4
If ever a group of men were equipped to accomplish such a task, it was this particular assemblage. They were well versed in the writings of Locke, Hume, Montesquieu, and other European philosophers who had given much thought to the nature of government. Unlike these Europeans, though, they were not unduly burdened by deeply ingrained traditions, such as deference to aristocratic privilege, running counter to the ideals of the transatlantic Enlightenment. They could take the best of their British heritage and leave the worst. They were also seasoned by two decades of Revolutionary experience; several had helped write their state constitutions, and all had taken part in deliberative bodies that grappled with difficult issues and made consequential decisions. They knew how to express their ideas, for in Revolutionary America, legislative debate was a highly developed art form and even something of a sport. They knew, too, how to listen to others and how to work collectively, not only in floor debates but also within committees that generated practical solutions. Never again would there be a group of Americans so learned, experienced, and motivated. All wanted to enshrine republican principles within a set of rules intended to govern a large and still-growing nation.
This was their moment, and the framers knew it. Once Randolph had presented the set of resolutions prepared by the Virginia delegation and known to posterity as the Virginia Plan, “he concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the U. S. to pass away unimproved.” To a man, they determined not to squander their unique “opportunity.”
But …
Whereas each of the framers had the good of the nation in mind, each also represented his own state and constituents. Given that interests differed state by state and region by region, interest-driven haggling often interrupted more philosophical and high-minded debate. Delegates from Delaware were determined to ensure that each state should be equally represented in Congress, a position that significantly increased the influence of their small state. Southern delegates argued that slaves be treated as people for purposes of apportioning representation, which would increase their influence, while northern delegates, with fewer slaves in their states, thought they should not. The resulting three-fifths compromise was a convenient if embarrassing settlement, the price of keeping the Union together. It did not reflect some great canon of republican law.
Although textbooks routinely outline the Convention’s major compromises, they seldom acknowledge fully the implications of these debates and the horse trading that resolved them, nor do they pay sufficient attention to lesser-known contests between competing interest groups. The “original intent” of the framers sometimes was shaped by philosophy, but as often as not provisions within the Constitution reveal another, more pragmatic, original intent: to secure the votes of a majority of the states’ delegations.
Understandably sensitive to how no-nonsense debate within the Convention might appear to those outside, the framers did not want blow-by-blow accounts of their dealings to leak out. That is one reason they pledged to keep records secret. As James Madison later put it, “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character…. The legitimate meaning of the instrument must be derived from the text itself.” Any attempt to find “legitimate meaning” in the Convention’s debates and compromises might “compromise” the authority of the Constitution.5
Thomas Jefferson, in France at the time as the American minister, complained to John Adams about the secrecy of the proceedings. In the same letter in which he called delegates to the Federal Convention “an assembly of demigods,” he wrote: “I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members. Nothing can justify this example but the innocence of their intentions, & ignorance of the value of public discussions. I have no doubt that all their other measures will be good & wise.” It was one thing to reach this conclusion from 3,000 miles away, but had Jefferson participated in the Convention, in all likelihood he too would have seen that public disclosure would undermine the mystique and hinder prospects for ratification.6
It is not Jefferson’s reservations that survive in the public mind, but his calling the framers “demigods.” We idolize the framers, we assume the nation would be better off in their hands, and we continually ask, “What would our founders do?” Although the answer to that question will of course vary issue by issue, and although we often inquire about issues that the framers and their contemporaries could not possibly have understood, if we choose to answer honestly, we would discover a surprisingly consistent methodology: the framers would create workable compromises that might not be ideologically pure but appeared the least objectionable.
When introducing the New Jersey Plan in mid-June, William Paterson said, “I believe that a little practical virtue is to be preferred to the finest theoretical principles, which cannot be carried into effect.” Oliver Ellsworth of Connecticut, while speaking on behalf of what would become the Great Compromise, said, “Let not too much be attempted; by which all may be lost.” He was not, he confessed, “in general a half-way man,” yet he “preferred doing half the good we could, rather than do nothing at all. The other half may be added, when the necessity shall be more fully experienced.” Like other framers, Paterson and Ellsworth treated the daily juggling of interests, grounded in lived experience, as key to the art of politics, not to be shunned but embraced. The Federal Convention featured humans living in the real world, not gods on some ethereal planet.7
The Full Story
On Friday, May 25, 1787, twenty-nine delegates from nine states (three additional states would be represented later) gathered in the Pennsylvania State House with credentials and instructions from their respective legislatures. The instructions authorized delegates to join with their peers “in devising, deliberating on, and di
scussing, such alterations and further provisions as may be necessary to render the Fœderal Constitution adequate to the exigencies of the Union,” or, more simply, to meet “for the purpose of revising the Fœderal Constitution.” The wording varied slightly, but the messages were similar. All twelve state legislatures that dispatched delegates told them to build on the existing Constitution, the Articles of Confederation. Delegates were empowered to make suggestions for altering it or for adding “further provisions,” but no state instructed its delegates to devise an entirely new plan.8
One set of instructions stood out from the rest. The Delaware legislature added a significant caveat: “provided, that such alterations or further provisions, or any of them, do not extend to that part of the Fifth Article of the Confederation of the said States, … which declares that ‘In determining questions in the United States in Congress Assembled each State shall have one vote.’” The motive was obvious: the 1790 census, taken three years later, counted 11,783 free white males in Delaware, while Virginia had 110,936 free white males. Under the existing rules, the Articles of Confederation, both states were entitled to one vote in Congress. This meant that each citizen of Delaware had nine times as much influence in Congress as a citizen of Virginia possessed. Understandably, the Delaware assembly did not wish to lose this advantage.9
Not surprisingly, on May 30, the first day of debating Virginia’s initial resolutions, James Madison challenged Delaware’s special status and moved “that the equality of suffrage established by the Articles of Confederation ought not to prevail in the national Legislature, and that an equitable ratio of representation ought to be substituted.” This was precisely what the Delaware assembly had worried might happen, so George Read, a delegate from Delaware, quickly moved “that the whole clause relating to the point of Representation be postponed; reminding the Come. [Committee of the Whole] that the deputies from Delaware were restrained by their commission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the Convention.”10
“Retire from the Convention”—would Read and his delegation really walk out at the outset? On the one hand, tiny Delaware was hardly in a position to go it alone should the rest of the states decide on a new set of rules to govern the Union, but on the other hand, Delaware’s delegates could force the issue by boarding boats and floating home, just a few miles down the river that bore their state’s name. Few delegates from other states wanted to chance the embarrassment of Delaware’s early departure. Moreover, because the Articles of Confederation could not be altered without unanimous approval from the constituent states, Delaware could potentially abort any plan the Convention submitted.
Unwilling to cede the point, Madison argued: “Whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a national Govermt. should be put into the place.” But Read and the rest of the delegation from Delaware were engaging in politics, pure and simple. “This did not appear to satisfy Mr. Read,” Madison observed caustically in his notes. Read’s motion to postpone carried the floor with no further debate. The smallest state, playing tough, carried the day.
Delaware’s delegates were seemingly obstinate, but just three days later, on June 2, John Dickinson conceded that some alteration of the equal-voting provision in the Articles of Confederation might be in order, despite his instructions to hold firm. The controversy over representation, he predicted, “must probably end in mutual concession.” In particular, Dickinson “hoped that each State would retain an equal voice at least in one branch of the National Legislature,” while “either the number of inhabitants or the quantum of property” could form the basis for proportional representation in the other branch.
And so, on the fourth day of debates, the broad outlines of the Great Compromise were already on the floor, yet delegates from large states and small states would continue to do battle for six more weeks before settling up. Intellectually, the solution was obvious, but politically it proved difficult. As Alexander Hamilton observed on June 29, the debate over representation was a “contest for power, not for liberty.”11
As delegates tussled, interest and philosophy tangled. Large-state advocates of proportional representation argued that for the national government to be “supreme,” as they had already decided (see chapter 1), it must act directly on citizens, without the interference of states. Conveniently, bypassing the states meant there was no reason for them to be represented equally. Pennsylvania’s James Wilson commented, “The Genl. Govt. is not an assemblage of States, but of individuals for certain political purposes—it is not meant for the States, but for the individuals composing them; the individuals therefore not the States, ought to be represented in it: A proportion in this representation can be preserved in the 2d. as well as in the 1st.”12
Opponents of proportional representation turned this argument on its head. To prevent domination by a potentially oppressive national government, state governments must be represented in Congress, and what better way than to be represented equally? Maryland’s Luther Martin “contended at great length and with great eagerness that the General Govt. was meant merely to preserve the State Governts.: not to govern individuals.” Thirteen states, joining together in common cause, remained “equal” parties to the Union, and they could not “give up an equality of votes without giving up their liberty.” The Virginia Plan was “a system of slavery for 10 States,” since Virginia, Massachusetts, and Pennsylvania, with half the votes, could easily “do as they please.”13
The fight was furious. Delaware’s Gunning Bedford Jr. warned that if the large states succeeded in overturning the one-state, one-vote provision of the Articles of Confederation, “the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” He then added he “did not mean by this to intimidate or alarm,” but of course he did. That was the very purpose of his remarks.14
On the other side, Pennsylvania’s Gouverneur Morris envisioned apocalyptic consequences should “state attachments” prevail: “This Country must be united. If persuasion does not unite it, the sword will…. The scenes of horror attending civil commotion can not be described, and the conclusion of them will be worse than the term of their continuance. The stronger party will then make traytors of the weaker; and the Gallows & Halter will finish the work of the sword.”15
This hyperbolic war of words was not for the timid. With each side pushing to the limits, Elbridge Gerry “lamented that instead of coming here like a band of brothers, belonging to the same family, we seemed to have brought with us the spirit of political negociators.”16
By June 28 Benjamin Franklin had heard enough. “We indeed seem to feel our own want of political wisdom,” he lamented, “since we have been running about in search of it.” A month of “close attendance & continual reasonings with each other” had produced but “small progress.” Unless the bickering ceased, “We shall be divided by our little partial local interests” and “our projects will be confounded.”
Was there any way out? “In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings?” Franklin then suggested they start each day’s proceedings with “prayers imploring the assistance of Heaven, and its blessings on our deliberations.” Delegates could not agree even on this, and his motion was tabled.17
Tempers rose yet higher. Positions rigidified. Never was the operative word. James Wilson proclaimed “he never could listen to an equality of votes,” while Luther Martin declared he would “never confederate if it could not be done on just principles.” Increasingly, debate followed the standard lines of interest-driven politics—we have to defend our interests to prevent others, who
defend theirs, from destroying us. Gunning Bedford claimed that because the large states were “dictated by interest, by ambition” and sought “to aggrandize themselves at the expense of the small,” it was unrealistic for the small states to submit to their “proposed degradation” and act “from pure disinterestedness.”18
On July 2, after the Convention deadlocked on a motion for equal representation in the second branch, South Carolina’s Charles Cotesworth Pinckney “proposed that a Committee consisting of a member from each State should be appointed to devise & report some compromise.” Most delegates agreed, but diehards on each extreme were not ready to settle. James Wilson objected to a committee that replicated the one-state, one-vote mechanism that his side opposed. Luther Martin, his opponent, did not object to the matter being assigned to a committee but declared his position on the committee’s deliberations in advance; he insisted that “no modifications whatever could reconcile the smaller States to the least diminution of their equal Sovereignty.” It was a classic response: compromise is fine, but only on my terms.
In the circuitous maneuverings typical of the Convention, the committee embraced a suggestion John Dickinson had made a month earlier: equal representation in one house, proportional representation in the other. At the suggestion of Benjamin Franklin, it sweetened the deal for the large states—all money bills would originate in the house with proportional representation because citizens could be taxed only by their direct representatives. The provision had the sanction of history. The more popular house of all colonial and state legislatures, as well as the House of Commons in the British Parliament, similarly held the exclusive power to introduce money bills.19
This compromise did not satisfy James Wilson, James Madison, or Gouverneur Morris.
Wilson complained that “the Committee had exceeded their powers,” even though it had merely suggested grounds for a compromise, as it had been instructed to do.20
