Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (22 page)

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.

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
whethe
r, 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:

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 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 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.