by Ray Raphael
Delaware’s delegates were seemingly obstinate, but just three days later, on June 2, John Dickinson, also representing Delaware, 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. 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.â€6
The fight was furious. Delaware’s Gunning Bedford Jr. warned that if the large states succeeded in overturning the one-state, one-vote provision, “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.7
On the other side, Pennsylvania’s Gouverneur Morris, representing the second largest state, 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.â€8
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.â€9
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, “[w]e shall be divided by our little partial local interests†and “our projects will be confounded.â€
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.10
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 classic 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.â€11
George Washington, as the convention’s president, could not express his views openly, but he did grouse in private. To his former aide-de-camp Alexander Hamilton, who had abandoned the Convention in frustration, he complained that “narrow minded politicians . . . under the influence of local views†were impeding all progress. “The state of the Councils,†he reported, was spiraling downward, leaving “little ground on which the hope of a good establishment can be formed.†The parochial interests within the convention left him uncharacteristically despondent: “I almost despair of seeing a favourable issue to the proceedings of our Convention, and do therefore repent having had any agency in the business.â€12
And so it continued. On July 14, exactly six weeks after Dickinson placed on the floor the outlines of the eventual compromise, delegates were still hurling insults back and forth. “The States that please to call themselves large, are the weekest in the Union,†Martin pronounced. “Look at Masts [Massachusetts]. Look at Virga [Virginia].†We are left to imagine Elbridge Gerry’s heated, and perhaps undignified, response; Madison reported only that he “animadverted on Mr. L. Martin’s remarks on the weakness of Masts.â€13
When would this end, and how?
On July 15 delegates observed the Sabbath, and then on Monday, July 16, without any further debate, they finally decided by the slimmest of margins that the first branch of the new national legislature would be apportioned by population while each state would be represented equally in the second branch. The final vote: five states in favor, four states opposed, with Massachusetts divided.14
Even after the final vote, delegates from large states refused to concede. Virginia’s Edmund Randolph moved that the convention adjourn for the day “that the large States might consider the steps proper to be taken in the present solemn crisis of the business.†New Jersey’s William Paterson called his bluff: Why just for the day? Perhaps it was time to adjourn for good, rescind “the rule of secrecy,†and consult “our Constituents.†That would be the end of any compromise, all delegates realized. The Convention granted Randolph’s request to allow the large states to caucus, but the caucus found no alternative solution the small states would accept.15
To no great fanfare, and with more ill will than good, delegates had given us the now celebrated “Great Compromise.â€
But even so, after representation in Congress had been settled, large states and small continued to jockey for position in the new government. Who would have more say in choosing the president?
Through most of the Convention, the working draft of the Constitution stated that Congress would choose the president. But how, exactly, would it do that? Meeting separately, as usual, or meeting jointly, even though that would not happen in any other context? If they met separately, what if their selections differed? But if they met jointly, wouldn’t the House, with many more members, overwhelm the Senate, with only two members per state? “A joint ballot would in fact give the appointment to one House,†complained New Jersey’s Jonathan Dayton, the Convention’s youngest delegate. The two chambers should vote separately, he suggested, so small states in the Senate could check the large states in the House, as with normal legislation.16
When the Convention decided on a joint session nonetheless, New Jersey delegate David Brearly countered with another proposal: Congress would choose the president in a joint session, but the entire delegation from each state would cast a single vote, as in the old Articles of Confederation. This blatantly small-state measure, which would negate the influence of large states, also failed.17
But Pennsylvania’s Gouverneur Morris, who had vigorously opposed congressional selection of the president all along, and disgruntled delegates from New Jersey and other small states, teamed up to revamp entirely the method of choosing the president. In a manner typical of the Convention’s proceedings, Morris, Dayton, and Brearly got the matter sent to a committee consisting of one member from each state. Brearly was its president and Gouverneur Morris a member.18
On September 4, less than two weeks before the Convention would adjourn, the committee presented its report to stunned delegates. What had been previously decided was overturned. Congressional choice of the president was scrapped altogether; instead, state legislatures would arrange for the selection of special electors, and these people would then choose the president. What we now call the electoral college was the direct result of political finagling by a handful of delegates in committee, and small-state, large-state concerns were paramount.19
When trying to explain the committee’s highly original method of presidential selection, Gouverneur Morris stated flatly, “It had been agreed to in the Committee on the ground of compromise.†This multifaceted compromise was perhaps the most complicated political deal making of the summer, and it is never mentioned in textbooks or other renditions of our national narrative. First, the number of electors for each state would equal that state’s number of representatives and senators; large states would derive an advantage, but even the smallest state would be guaranteed three electors. Because it awarded votes in large measure according to representation in the House, this measure reenforced the three-fifths compromise, giving added heft to the South and securing the support of delegates from slaveholding states. Electors were to cast ballots for two candidates, one of whom could not be from the elector’s home state, and the winner would need a majority, not just a plurality, of the electors’ votes; taken together, these measures prevented large states from electing favorite sons and thereby offered some protection to small states. Further, because many or most elections were not expected to produce a clear winner, runoffs featuring the five leading contenders would be determined in the Senate, where small states and large states had equal votes. (The Convention later reassigned the determination of this runoff from the Senate to the House, but with members voting by state delegations—one state, one vote—to satisfy the small states.)20
No coherent philosophy could encompass such divergent elements of what we might call the unheralded “little compromise.†What we have, in place of coherence, is the electoral college, shaped at the Federal Convention amid backroom wheeling and dealing. This convoluted institution, which few Americans have ever understood, has granted the presidency to the loser of the popular vote on four occasions. Forged by politicized give-and-take, it is ours to this day.21
“A POLITICAL LIGHT ONLYâ€
By deciding that representation in the first branch of the legislature, and indirectly in the presidency, should be apportioned according to population, delegates inadvertently raised a most troubling issue: Should slaves be counted as people?
Not surprisingly, since it would increase their region’s influence in the federal government, Southern delegates said they should. A slave’s labor, they argued, contributes to national wealth and strength, just like that of a free person.
Northern delegates, not wanting their relative influence to diminish, argued that only citizens should have a voice in the government. Counting slaves would grant enormous powers to Southern slaveholders, who would in essence cast votes on behalf of the people they held in bondage.
Since neither side would concede, delegates came to a workable but not very rational compromise: in calculating how many representatives could go to Congress, each state would include its “whole Number of free Persons,†exclude “Indians not taxed,†and then add “three-fifths of all other Persons,†the framers’ euphemism for enslaved human beings. How in the world did they come up with three-fifths? Why not some other fraction?
For that we need to go back to 1783, fours years before the Convention, when Congress faced an inversely related problem. At that time, while trying to make the Articles of Confederation more workable, Congress wanted to find a formula for how much money each state needed to contribute to the common treasury. Should slaves be counted in that calculation?
Southerners said no. If Congress counted slaves, who were property, why not count horses in the North? Besides, they argued, slaves were not as productive as free people. But Northerners countered that slave labor was productive, so any measure of property must reflect that.
To keep the embryonic nation together, congressional delegates at that time tried to fashion a compromise. Southerners offered to count one-half (50 percent) of the enslaved population, but Northerners insisted on two-thirds (67 percent). After considerable haggling, Congress split the difference: three-fifths (60 percent).22 In 1787, once again at an impasse, delegates to the Federal Convention simply dusted off the three-fifths fraction, even though the argument had turned into its mirror opposite. When counting slaves added an extra burden to the South’s financial obligations, the North said count them, while the South said not to. But when slaves turned from a liability to an asset for purposes of representation, the South said count them, while the North said not to. Both sides reversed their positions. Logic? Morality? Not exactly. Delegates did whatever had to be done to move the show along. They wanted a new Constitution for the entire nation, and haggle as they might, they would do most anything to get it.
The notorious three-fifths compromise, not celebrated like the “Great Compromise,†failed to settle the matter of slavery at the Convention. On August 6, after more than two months of debates, a five-man Committee of Detail fleshed out a rough draft of what would become the Constitution. In that draft, to reassure the Southern states, the committee stipulated that Congress would not be allowed to tax or prohibit “the migration or importation of such persons as the several States shall think proper to admit.â€
Two weeks later, when that provision came up for debate, Maryland’s Luther Martin, a slave owner himself, moved immediately to strike it out. Since each imported slave would add to a state’s representation, states would be rewarded politically for engaging in the slave trade. “It was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution,†he argued.23
Virginia’s George Mason, also a large slave owner (his plantation was very close to Washington’s Mount Vernon), supported Martin’s motion for both practical and moral reasons. Slavery impeded “the immigration of Whites, who really enrich & strengthen a Country,†while it also produced “the most pernicious effect on manners.†In words that are now often quoted, Mason boldly pronounced: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this.â€
Did these slaveholders seriously oppose the very institution that supported them? Not entirely. Neither Martin nor Mason had any problem counting enslaved people, or at least some fraction thereof, to boost the representation of their respective states. But the issue this time was the importation of slaves—and both Maryland and Virginia already had as many as they needed.
The profitability of rice plantations in South Carolina, on the other hand, depended on more slave labor than was currently available, so delegates from that state wanted to keep importation open. Charles Cotesworth Pinckney, a South Carolina patrician, called out Mason for his high-toned stance, alleging baser motives: “As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants.†This surplus of slaves would allow Virginians to establish “a monopoly in their favor,†setting “their own terms for such as they might sell.†Mason’s moralizing merely protected Virginia’s local industry—breeding slaves for the market—which foreign imports would impair.
Other delegates from South Carolina and neighboring Georgia chimed in to defend the “right†to own slaves.
Charles Pinckney (Charles Cotesworth Pinckney’s cousin) argued from history: “If slavery be wrong, it is justified by the example
of all the world.†He “cited the case of Greece, Rome & other antient States; the sanction given by France, England, Holland & other modern States. In all ages one half of mankind have been slaves.â€
Georgia’s Abraham Baldwin (a transplanted son of Connecticut) offered an argument that defenders of slavery would repeat many times before the Civil War: slavery was “a local matter,†not a “national object,†and Georgia would refuse to accept any attempt “to abridge one of her favorite prerogatives.†Charles Pinckney offered a similar threat: “South Carolina can never receive the plan [the Constitution] if it prohibits the slave trade.†There must be no “meddling with the importation of negroes.â€
South Carolina’s John Rutledge was particularly blunt: “Religion & humanity had nothing to do with this question—interest alone is the governing principle with nations.†It was perhaps the brashest, and most honest, statement of the summer.24
And “interest alone†settled the manner. Delegates from the Deep South cut a deal with those from New England: in return for allowing slave importation for another twenty years and a fugitive slave law, pro-importation Southerners would cede to Northern commercial interests and drop their demand that all navigation laws require a supermajority. (The North, which depended on maritime commerce, did not want the five Southern states, a minority, to block procommerce laws.) Each side got something it wanted, although Virginia and Maryland, which opposed slave importation and wanted a supermajority for navigation laws, lost out.25 In the thick of the debate over slave importation, Rufus King of Massachusetts commented, “the subject should be considered in a political light only,†and that is exactly the way delegates to the Federal Convention dispatched the embarrassing matter of slavery. Philosophical talk of liberty and human rights gave way in the end to backdoor deal making.26 When Gouverneur Morris of Pennsylvania, who favored abolition, said he “would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution,†the other delegates simply ignored him.27
