CHAPTER THREE

THE CONSTITUTIONAL CONVENTION OF 1787

A REVOLUTION IN GOVERNMENT

THE FIFTY-FIVE MEN WHO GATHERED in the Assembly Room of the Pennsylvania State House in the summer of 1787 faced a formidable task. The thirteen “united states” that comprised the American union under the Articles of Confederation were in fact profoundly disunited. America, by the extraordinary expanse of its territory, the ethnic and religious diversity of its population, and the existence of thirteen independent and sovereign states, each possessing distinct cultural and political traditions and a multitude of varying and competing interests, was by no means inevitably meant to be a single nation.

As things have turned out, the framers of the Constitution were remarkably successful in their enterprise. The Constitution they drafted has proven a remarkable achievement: It is the world’s oldest written national constitution. It has, for the most part, been successful in striking that difficult balance between the maintenance of public order and security, on the one hand, and the nurturing and protection of personal liberty, on the other. And it has brought remarkable stability to one of the most tumultuous forms of political activity: popular democracy.

But it didn’t begin that way, nor was the outcome of the Constitutional Convention in any way inevitable. As we look at the work of the Founding Fathers during that summer of 1787, it seems a wonder that things turned out as well as they did.

As the framers of the Constitution set about their work, they were confronted by a vexing dilemma. The central unifying idea behind America’s rejection of British monarchical rule in 1776 was the belief that governmental power was inherently aggressive, inherently dangerous. The best way to protect liberty, the revolutionaries of 1776 believed, was to keep government relatively weak and keep it close to the people, where those entrusted with power could be closely watched. The very last thing that they wished to do was create a strong central government, distant and isolated from the people of the country. Yet, as we have seen, America’s patriot leaders knew some form of central government was necessary to fight and win a war against one of the world’s great military powers and thus achieve their quest for independence. The first logical—if inadequate—step in creating a workable union among the states was the government under the Articles of Confederation. As the year 1786 drew to a close, with the Continental government facing bankruptcy and with armed insurrection threatening peace and public order in Massachusetts, those political leaders who had led America’s fight for independence began to realize that dramatic action needed to be taken if they were going to preserve the very aim of their quest: the preservation of both liberty and order.

THE ANNAPOLIS CONVENTION

These crises in government coincided with the convening of a small group of delegates in Annapolis, Maryland, on September 11, 1786, to discuss a more “uniform system” of commercial relations among the states. The so-called Annapolis Convention was a strictly extralegal gathering and, in truth, it failed altogether to achieve its stated mission. Only twelve delegates, from five of the thirteen states, turned up, and, lacking a quorum, there was not really much that they could accomplish. But those twelve delegates who went to the trouble to make the trip to Annapolis—among them John Dickinson, Alexander Hamilton, James Madison, and Virginia governor Edmund Randolph—all held far less complacent views about the need for a more energetic Continental government than those serving in the governments of most of the states. Concluding their business on September 14, 1786, the twelve delegates endorsed an address prepared by Hamilton; that address asked “with the most respectful deference” that the states appoint commissioners to meet in Philadelphia in May of the coming year, “to devise such further provisions as should appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” This seemed like a modest proposal, but underlying that request was a very ambitious agenda. The men in Annapolis were not interested in minor adjustments to the provisions of the Articles of Confederation; they were, in fact, hoping to launch a revolution in government.

Their plans for this revolution would first have to gain the approval of the Continental Congress in New York. The Congress received the address from the Annapolis Convention on September 20, and then ignored it for three weeks before finally referring it to a “grand committee” consisting of a delegate from each of the thirteen states. And there the proposal for a convention languished. Some of the inactivity stemmed from the reservations of a few committee members, who thought that the Congress had no right to call such a convention, but the more important reason for the Congress’s inaction stemmed from its inability to get a sufficient number of delegates together to take up the matter at all. More than four more months would pass before, finally, on February 21, 1787, Congress took action. Some of the credit for that first positive step belongs to James Madison; in spite of bouts of illness, he made the trip from Virginia to New York to urge action on the Annapolis proposal. Perhaps more important, even though the Shaysite rebels in western Massachusetts had been dispersed by an imposing military force just two weeks before, the Continental Congress continued to receive news that the Commonwealth of Massachusetts was in a state of rebellion.

When the Continental Congress finally approved the proposal that a meeting of delegates from each of the states be held in Philadelphia in May, it did so with the understanding that the convention would meet “for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” The congressional delegates, reluctantly agreeing to the idea of a convention, had done everything they could in their resolution of approval to limit the charge of that convention. But those constraints would soon be ignored by a handful of delegates to the Constitutional Convention who had a far more ambitious idea for a federal union in mind.

THE CONVENTION DELAYED

It did not begin auspiciously. On May 14, 1787, the day on which the Convention was due to begin, James Madison, who had arrived in Philadelphia eleven days before, found himself in a gloomy mood. Only a handful of delegates had turned up, and indeed eleven more days would pass before the Convention was finally able to get under way with a bare quorum of seven state delegations assembled. General Washington, one of the few who had arrived in Philadelphia on time, began to worry that the Constitutional Convention would fall victim to the same combination of apathy and indolence that had afflicted the Continental Congress. As things turned out, however, that eleven-day hiatus would provide for those few delegates who had bothered to turn up on time a rare opportunity to plan their revolution in government.

The ringleader was the thirty-seven-year-old Madison. Standing only a few inches over five feet tall, scrawny, suffering from a combination of poor physical health and hypochondria, and painfully awkward in any public forum, Madison nevertheless possessed a combination of intellect, energy, and political savvy that would mobilize the effort to create an entirely new form of continental union.

Madison was gradually joined, over the days between May 14 and May 25, by a group of delegates from Virginia and Pennsylvania who would combine to concoct a plan not merely to “amend” the Articles of Confederation, but to set the proceedings of the Convention on a far more ambitious course. The first gathering of these reform-minded delegates took place on the evening of May 16, in the home of Benjamin Franklin, where dinner was served in his impressive new dining room along with a “cask of Porter,” which, Franklin reported, received “the most cordial and universal approbation” of all those assembled. The Pennsylvania and Virginia delegates would thereafter meet frequently during the days leading up to May 25, both in the afternoons in the state house itself and in the evenings in City Tavern or the Indian Queen, to craft an entirely new conception of Continental government.

Franklin’s and Washington’s presence gave the group both dignity and prestige, but it was Madison and James Wilson and Gouverneur Morris of Pennsylvania who provided much of the intellectual leadership. Wilson, a dour but brilliant Scotsman, was perhaps the only person in the Convention who was Madison’s intellectual equal, and he shared Madison’s commitment to creating a truly “national” government based on the consent of the people, not the individual states. Gouverneur Morris was nearly as intellectually brilliant as Wilson; he shared with Wilson a desire for a strong national government, but his personality was very different—more mercurial and outgoing (particularly when it came to his amorous relationships with women). And he was also more openly contemptuous of the excesses of “democracy.” Together these men would forge a radical new plan, the Virginia Plan, which would shape the course of events during that summer of 1787.

THE CONVENTION GOES TO WORK

By seizing the initiative, this small group of nationalist-minded politicians was able to set the terms of debate during the initial stages of the Convention, gearing the discussion toward not whether, but how a vastly strengthened Continental government would be constructed. On May 25, 1787, the Convention finally gathered the necessary number of delegates to open its business, and the following Monday, May 28, the delegates agreed to a proposal that would prove invaluable in allowing men like Madison, Wilson, and Morris to move their plan forward. To prevent the “licentious publication of their proceedings,” the delegates agreed to observe a strict rule of secrecy, with “nothing spoken in the house to be printed or otherwise published or communicated.” One consequence of this decision was that the delegates were forced to deliberate throughout that Philadelphia summer—with the average daytime temperature in July and August hovering in the eighties and nineties and the intense humidity for which the city is still famous—with the doors of the Assembly Room closed and its windows shut. The more important consequence, amazingly, at least in terms of twenty-first-century political practices, was that the delegates were scrupulous in adhering to the rule of secrecy. Barely a world of their deliberations leaked out of the Convention during the whole of the summer.

Virtually all the delegates took it for granted that the rule of secrecy was wholly appropriate; in the words of Virginia’s George Mason, it was “a necessary precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its first crude and undigested shape, and after it shall have been properly matured and arranged.”

But was such secrecy appropriate to a democratic republic? Our answer today, of course, would be no. Yet the delegates, if they had had to answer the question, would have been quick to remind us that the political values they were serving, while definitely “republican,” were not “democratic.” As firm believers in republican values, they were committed to creating a political system that rejected any form of hereditary rule, and that was broadly representative of the public at large—but their commitment to republican values did not extend to an endorsement of the notion that all men were equally qualified or equally entitled to play an active part in the creation of a new government.

Protected from a hostile public reaction by the rule of secrecy, the delegates proceeded to debate the Virginia Plan, the essential features of which were:

1. The creation of a “national” legislature consisting of two branches, with membership in each branch to be apportioned according either to “Quotas of contribution” or the “number of free inhabitants.” This body would have the power to “legislate in all cases to which the separate States are incompetent” and to “negative all laws passed by the several States.”

2. The creation of a powerful “National Executive,” to be elected by the national legislature.

3. The chief executive, together with “a convenient number of the National Judiciary,” would compose a “Council of revision,” which could veto laws passed by either the national legislature or the various state legislatures.

As the details of the Virginia Plan were revealed to those gathered in the Assembly Room, it became clear that the plan was not a mere revision of the Articles of Confederation but, rather, a bold new start on an entirely new kind of government. The word “national” rather than “federal” was used repeatedly to describe the various branches of the proposed government, and the powers of that government were consistently defined as superior to those of the states. The Virginia Plan also reflected some of the reservations that its authors had with respect to democratic political processes. Of all the branches of the government, only the lower house was to be directly elected by the people; officials in the other branches were to be either indirectly elected or appointed.

Some within the Convention were outraged by the audacity of the plan. James Madison, casting his eyes around the Assembly Room as Virginia governor Edmund Randolph delivered the speech outlining the details of the Virginia Plan, observed a variety of reactions: emphatic agreement among the Virginia and Pennsylvania delegates; mild approval from New York delegate Alexander Hamilton; but clear disapproval from the other two members of the New York delegation, Robert Yates and John Lansing. Even more striking, New Jersey delegate William Paterson was clearly shocked by what he was hearing. A highly intelligent but rigid and puritanical soul, Paterson would emerge as one of the principal spokesmen for the interests of the smaller, less-populous states. Paterson could be seen frantically scribbling on a notepad: “Objection!” He, like Robert Yates, believed that the adoption of the Virginia Plan would create a “consolidated union in which the idea of the states should be nearly annihilated.”

But Paterson and Yates, observing the rule of secrecy, confined their outrage to the Assembly Room of the state house. As it would turn out, the rule of secrecy operated powerfully in favor of those delegates who wished to see such drastic change. Had a strong advocate of the sovereign power of the individual states—such as Virginia’s Patrick Henry, who was elected a delegate to the Convention but declined to serve—heard of this radical deviation from the instructions of the Continental Congress, he would have mounted his horse and rode to Philadelphia to join his delegation. But Henry and other politicians jealous of guarding the power of their states were not apprised of the proceedings, and for that reason, on May 30—just three days after the Convention began its work—a majority of state delegations, with six of the eight states present voting in favor, agreed that “a national government ought to be established consisting of a supreme Legislative, Executive, and Judiciary.” They had voted for a revolution in the structure of America’s Continental government.

It was an amazing victory for that small cadre of nationalist-minded delegates who had cooked up the Virginia Plan, but their attempt at revolutionary change, once launched, proved difficult both to sustain and to control. Over the course of the summer, the delegates would debate, disagree, and ultimately compromise on a host of issues. The most divisive of those issues—those involving the apportionment of representation in the national legislature, the powers and mode of election of the chief executive, and the place of the institution of slavery in the new Continental body politic—would change in fundamental and unexpected ways the shape of the document that would eventually emerge on September 17, 1787.

THE FOUNDING FATHERS AND FEDERALISM

The delegates haggled over how to apportion representation in the legislature off and on for the entire period between May 30 and July 16. Those from large, populous states such as Virginia and Pennsylvania argued that representation in both houses should be based on population, while those from smaller states such as New Jersey and Maryland argued for equal representation for each state. The so-called New Jersey Plan, presented by William Paterson in mid-June, called for a “federal” rather than a “national” government, and its essential feature—a single-house legislature in which each state was to have only one vote—seemed to be a reincarnation of the Articles of Confederation. In fact, the New Jersey delegates, along with most of the delegates from other small states, were less concerned about limiting the power of the new government than they were interested in gaining maximum power for their states within the newly strengthened government.

The protracted debate over these alternatives was an unedifying, even unattractive, affair. At one point, Gunning Bedford, a corpulent, blustery delegate from Delaware, confronted the principal supporters of the Virginia Plan from Virginia, Pennsylvania, and Massachusetts, thundering, “I do not, gentlemen, trust you.” Bedford then threatened that if the small states did not get their way they might well, in pursuit of an alternative union, “find some foreign ally of more honor and good faith.”

The compromise that eventually emerged from that debate, championed most energetically by the delegates from Connecticut, was an obvious one—so obvious that it was proposed off and on by several delegates almost from the beginning of the contentious six-week period between the end of May and the middle of July: representation in the lower house would be apportioned according to population, with each state receiving equal representation in the upper house. In the final vote on the Connecticut Compromise, occurring on July 16, five states supported the proposal with four opposing, including Virginia and Pennsylvania, and one state divided. James Madison in particular was disconsolate. He was convinced that the compromise would destroy the very character of the national government he hoped to create. Indeed, the next morning Madison and several other large-state delegates met to consider whether they should leave the Convention altogether. In fact, not only did they not leave the Convention, but they managed to turn defeat into victory. In an astonishing reversal of his “original intent,” Madison, during the debate over ratification of the Constitution, would use his “defeat” in the controversy over representation to fashion an entirely new definition of federalism. In “Federalist No. 39” he defended the proposed new constitution against its critics by praising the different modes of representation in the House and Senate—with the House representing the people of the nation at large and the Senate representing the residual sovereignty of the states—as one of the features that made the new government part national and part federal. No one knew how that new definition of federalism would actually work in practice, and it would remain a source of contention for much of the nation’s early history. In this, as in so many areas, the so-called original meaning of the Constitution was not at all self-evident—even to the framers of the Constitution themselves.

THE FOUNDING FATHERS AND THE PRESIDENCY

The debate among the delegates over the nature of the American presidency was more high toned and, if anything, even more protracted and confusing than that over representation in the Congress. At one extreme, nationalists like James Wilson and Gouverneur Morris argued forcefully for a strong, independent executive capable of giving “energy, dispatch, and responsibility” to the government. They urged their fellow delegates to give the president an absolute veto over congressional legislation. At the other end of the spectrum, Roger Sherman, a plainly dressed, plainspoken delegate from Connecticut who would prove to be one of the most sagacious members of the Convention, spoke for many delegates when he declared that the “Executive magistracy” was “nothing more than an institution for carrying the will of the Legislature into effect.” This led Sherman to the conclusion that the president should be removable from office “at pleasure” any time a majority in the legislature disagreed with him on an important issue. (By that same logic, Sherman would have allowed the president to be impeached by a majority of Congress for just about any reason at all.)

Many—perhaps most—of the delegates thought that the executive should be elected by the national legislature; still others thought the executive should be elected by the state legislatures or even by the governors of the states. James Wilson was virtually the only delegate who came out unequivocally for direct election of the president by the people. He believed that it was only through some form of popular election that the executive branch could be given both energy and independence.

James Madison kept changing his mind. His initial version of the Virginia Plan called for election of the president by the national legislature. And although he has subsequently gained the reputation of being one of the foremost proponents of the doctrine of separation of powers, he muddled things in the Convention by proposing a merging of the executive and judicial powers in a “Council of revision” composed of both the executive and a “convenient number of the National Judiciary.” Madison gradually came around to the idea that the executive and judicial functions should be separated, but he continued to argue for the selection of the president by Congress up until the final days of the Convention. After reading Madison’s notes on the debates in the Convention—our primary resource for learning about what happened inside the Pennsylvania State House that summer—one gets the sense that his eventual acquiescence to the idea of an electoral college as the method of presidential election was marked as much by weariness as by enthusiasm.

James Wilson, realizing that his proposal for direct popular election of the president was gaining no favor, proposed a version of the electoral college in early June, but the delegates didn’t like that proposal any more than they liked his proposal for direct popular election, voting it down overwhelmingly at that point. They voted against some version of the proposal on numerous occasions between early June and early September of 1787, only agreeing to the version contained in our modern Constitution (modified slightly by the Twelfth Amendment) grudgingly and out of a sense of desperation, as the least problematic of the alternatives before them.

It has often been observed that much of the framers’ difficulty in deciding how to elect the president was the result of their misgivings about democracy—their fear that the people of the nation could not be trusted to make a wise choice for their chief executive. In truth, it was not so much that the Founding Fathers distrusted the inherent intelligence of the people but, rather, that they had a very clear and realistic understanding of the provincialism of the American people. They understood that America’s vast landscape, the poor state of its communications, and the diversity of its cultural character and economic interests would make it extremely difficult for any single candidate to gain a majority of the popular vote. How could a voter in Georgia know the merits of a candidate in New York or vice versa? Thus they very quickly cast aside James Wilson’s proposal for direct election of the president as unworkable.

The other obvious solution—election by members of a national Congress whose perspective was likely to be continental rather than provincial—was ultimately rejected because of the problems it created with respect to the doctrine of separation of powers: the president, it was feared, would be overly beholden to, and therefore dependent upon, the Congress for his election. The creation of an electoral college was a middle ground, and while many delegates feared that locally selected presidential electors would be subject to the same sort of provincial thinking as ordinary citizens, they reluctantly came to the conclusion that it was the best they could do while still preserving an adequate separation of power between the executive and legislative branches. It was a highly imperfect solution to a real problem, but in the context of the times, there may well have been no better alternative.

THE FOUNDING FATHERS AND SLAVERY

The delegates’ commitment to principles of equality as articulated in the Declaration of Independence was, even in the case of free adult males, a limited one. (For example, most of the delegates supported the imposition of property qualifications for voters in their individual states.) But nowhere were those limitations more obvious than during those instances when the subject of slavery intruded into their deliberations. By 1787 slavery in America was in a state of decline. It remained a significant part of the social and economic fabric in five of the states represented in the Convention, but only two states—South Carolina and Georgia—were inclined to argue for an expansion of America’s “peculiar institution.” Yet the delegates in Philadelphia failed to eradicate that great contradiction to the core values of liberty and equality on which America had declared its independence. Instead, they enshrined the institution of slavery within their new Constitution.

Although neither the word “slave” nor “slavery” is mentioned anywhere in the Constitution, contention over slavery pervaded the debates on the Constitution throughout the whole of the summer of 1787. It was, for example, impossible to discuss questions relating to the apportionment of representation without confronting the fact that the slave population of the South—whether conceived of as residents or property—would affect the calculations for representation. The delegates argued about the proper formula for representing slaves through much of the summer. The final resolution of that issue—a formula by which slaves would be counted as three-fifths of a person in apportioning both representation and taxation—was a purely mechanical and amoral calculation designed to produce harmony among conflicting interests within the Convention. As many disgruntled delegates pointed out, it had little basis either in logic or morality, but in the end, the need for a consensus on the issue, however fragile that consensus might be, outweighed all other considerations.

The debate over the future of the international slave trade was in many respects more depressing than that which culminated in the three-fifths compromise. Only the delegates from South Carolina and Georgia were determined to continue what most other delegates believed to be an iniquitous trade, yet their insistence that the trade continue for at least another twenty years carried the day. However troubled delegates from the other states may have been, their concern for harmony within the Convention was much stronger than their concern for the fate of those Africans whose lives and labor would be sacrificed by the continuation of the slave trade.

Finally, the delegates adopted without dissent a provision requiring that any “Person held to Service or Labour in one State . . . [and] escaping into another, . . . shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” By means of that tortured language, and without mentioning either the word “slaves” or “slavery,” the delegates made a fugitive-slave clause an integral part of our federal compact. It was the one act of the Convention that not only signaled the delegates’ grudging acceptance of slavery but also made the states that had moved either to abolish or gradually eliminate slavery in the aftermath of the Revolution actively complicit in their support of that institution.

THE QUESTION OF A BILL OF RIGHTS

On September 12, just five days before the Convention was to adjourn, George Mason of Virginia rose and expressed his wish that the nearly completed draft of the Constitution be “prefaced with a Bill of Rights.” It would, he said, “give great quiet to the people.” Citing as examples the bills of rights in the individual state constitutions, Mason believed that the delegates to the Philadelphia Convention might prepare a bill of rights “in a few hours.”

Mason had good reason to make such a suggestion. As the principal draftsman of the Virginia Declaration of Rights, he believed that bills of rights articulating the fundamental liberties of the citizenry should be part of any proper constitution. And as the delegates to the Convention would discover in the coming months, there were a good many in America—probably a majority of citizens—who shared that belief. But the delegates must have groaned audibly at Mason’s suggestion. Roger Sherman of Connecticut quickly disagreed with Mason, arguing that since there was nothing in the proposed Constitution that was contrary to the provisions in the various state bills of rights, there was no need to duplicate them by adding a bill of rights to it. Mason fought back, insisting that a federal bill of rights guaranteeing that the new government would not encroach on the people’s fundamental liberties—such as freedom of speech, press, and religion, and trial by jury—was essential if those liberties were to be protected. But the delegates turned a deaf ear. When the matter was put to a vote, after a discussion lasting no more than a few moments, not a single state delegation supported Mason’s proposal.

That decision, arrived at hastily and casually, would prove to be one of the most serious mistakes made by the men who drafted the Constitution. When Thomas Jefferson, serving as ambassador to France, received a copy of the completed Constitution from James Madison, he was unable to contain his unhappiness at the absence of a bill of rights. “The omission of a bill of rights, providing clearly and without the aid of sophisms, for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters,” was, Jefferson wrote in dismay to his friend, a grievous error. He believed that a bill of rights was an essential protection “against doing evil, which no government should decline,” and he expressed the hope that a bill of rights would be added to the Constitution without delay.

How could the delegates have ignored the lessons of their revolutionary past and not included a bill of rights in their proposed plan of union? In the months following, as they tried to persuade a skeptical public to endorse the document, supporters of the Constitution would argue that the proposed federal government was primarily concerned “with objects of a general nature,” and that any attempt to replicate the state bills of rights would be not only redundant but also dangerous. “Who will be bold enough,” James Wilson asked, “to undertake to enumerate all the rights of the people?” His fear was that if the enumeration of those rights was not complete, then everything not explicitly mentioned would be presumed not to be a right at all. Madison was equally cavalier, calling the state bills of rights “parchment barriers” that had not served to stop the state governments from invading the rights of their citizens when it suited their purpose.

In fact, these glib rationalizations were probably not the real reasons for the omission of a bill of rights. By mid-September the delegates were profoundly weary of their labors and desperately anxious to return to the comfort of their homes. Although Mason had claimed that “a bill might be prepared in a few hours,” the delegates in the hot, stuffy Assembly Room knew better. It would be a difficult, arduous task filled with contention. And they wanted to go home. They would, however, pay a price for their impatience in the coming months.

“APPROACHING SO NEAR TO PERFECTION”

As the Convention prepared to adjourn, the delegates were hardly of one mind about the nature of the government they had created. Some, like Madison, had come with the intention of creating a truly supreme, “national” government, but by the end of the summer most delegates were referring to the proposed government as “federal” in its character. In fact, the framers—still fearful of the aggressive, corrosive effects of unrestrained power—tried to strike a balance between the two by creating a government of limited powers that nevertheless had the requisite “energy” to do all the things promised in the preamble: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” A tall order, especially when they were pledging at the same time to create a government that divided power between the states and the nation in such a way as to allay people’s fears of an overbearing central power. As the delegates made their decisions about whether to sign the Constitution on September 17, 1787, there was little common understanding among them about how this new part-national, part-federal conception of federalism would actually work in practice, but they had at least made a start in creating a framework within which issues of state and national power could be negotiated.

Similarly, most of the framers understood that it was necessary to invigorate executive power, but at the same time they wished to avoid at all costs creating anything that resembled the unchecked power of the British king. By rendering the selection of the president independent of the legislature and by giving that president a limited veto power over congressional legislation, the framers were on the whole remarkably successful in both invigorating and containing executive power. Successive generations have debated where the balance point between invigoration and containment should rest, but the framers were relatively successful in setting the general parameters for that debate.

The framers’ greatest failure occurred in the area of slavery and race. It is perhaps unrealistic to expect these eighteenth-century men to have moved decisively against the institution of slavery, but they failed to seize the opportunity to take even minimal steps that might have eased the way toward the ultimate abolition of slavery. By creating a process by which the Constitution could be amended, they did provide for a way in which their initial mistakes could be corrected, but since the Constitution required the approval of three-quarters of the states for any amendment to take effect, those states that had a vested interest in keeping the institution of slavery in place had an effective veto power over anything that might substantially threaten it. It would take a bloody, ghastly civil war and the loss of six hundred thousand American lives to effect the kind of constitutional change that would eliminate the most fundamental paradox at the nation’s core.

068

ON THAT FINAL DAY OF THE CONSTITUTIONAL Convention, it was left to the Convention’s oldest delegate, eighty-one-year-old Benjamin Franklin, to sum up the nearly four months of debate, disagreement, and occasional outbursts of ill temper that had marked the proceedings of that summer. Franklin observed that whenever “you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” The wonder of it all, Franklin asserted, was that the delegates had managed to create a system of government “approaching so near to perfection as it does.”

Franklin acknowledged that there were “several parts of this Constitution which I do not at present approve,” but, he added, “the older I grow the more apt I am to doubt my own judgment and pay more respect to the judgment of others.” Franklin concluded by asking each of his fellow delegates to “doubt a little of his own infallibility” and step forward to sign the Constitution. In that spirit of humility, thirty-nine of the forty-two delegates present on that last day would take that important step forward and, in the process, move America one step forward in achieving a “more perfect Union.”

If you find an error please notify us in the comments. Thank you!