Founder's Follies IV: The Philadelphia Convention

This is the fourth installment of Chredon's analysis of the making of the Constitution, and where the Founders went wrong. For background, see the previous issues:

Issue I: The Founders' World - Historical context of the Constitution

Issue II: The Confederate Period - The failure of the Articles of Confederation

Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution

Selection from Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy (1940)

Howard Christy's portrait of the signing of the Constitution certainly makes the event look noble and heroic. But a lot of debating, dealing, and compromising took place prior to this noble scene (if, indeed, this noble scene ever existed anywhere but Christy's imagination.). 

There are two great historical documents that describe in detail the deliberations of the Constitutional Convention. And the two men you can thank for them are near the center of the portrait above. The man in red with his hand in the air is William Jackson. Jackson was not properly a delegate to the convention. He was the secretary who recorded the resolutions and votes. But of even greater importance is the man in black and white at Jackson's left elbow, seated at a desk littered with crumpled papers - James Madison. Madison's notes on the Constitutional Convention are a complete, detailed, and by all accounts accurate recording of the day-by-day debates and decisions. They take a while to read, and can be somewhat dry reading. But for Constitutional scholars, they're the best, most complete, and most accurate recording of what the Founders believed they were creating as they wrote the Constitution. Not even the Federalist Papers offer any competition, since those works of Madison, Hamilton, and Jay were intended to sway voters, not accurately record the proceedings of the Convention.

What we find in reading Madison's journal is that the primary points of contention in creating the Constitution were not those of slavery or religion or the enumerated powers of the Federal government. Certainly, those are mentioned, but the greatest debate was on the structure of the government itself, and particularly in how many representatives each state received and how they were selected. Much debate also went into the character of the office of the Executive (President) and how he, or they, were to be chosen.

Several plans for the structure and powers of the new government were proposed:

• The Virginia Plan - Also known as the Large State Plan, this was designed by James Madison and proposed by Edmund Randolph. 
• The Pinckney Plan - Proposed by Charles Pinckney of South Carolina.
• The New Jersey Plan - Also known as the Small State Plan, this was designed by a coalition of small states and presented by William Patterson of New Jersey.
• The Hamilton Plan - Presented by Alexander Hamilton and often referred to as the British Plan, since it seemed to establish a British-style Parliament and a nationally-selected monarch.
• The Connecticut Compromise - A plan put forward by Roger Sherman of Connecticut, it was designed to get around several sticking points in the debate.

Madison's notes on the proceedings are astounding reading, not only for their clarity and scope, but also for their content. They show that the Convention was a most disciplined group of men. They meticulously and diligently discussed and debated each point in succession, resolving even the most minute wording changes and what they might mean when interpreted by those who, in future years, would be left to administer the nation. In one early debate, Mr. Pinckney and Mr. Rutledge both objected to giving the national legislature “Legislative power in all cases to which the State Legislatures were individually incompetent," because the word 'incompetent' was vague and open for debate.

The delegates were also men capable of compromise and of changing their positions. For example, early votes established that the term of office for the President should be seven years with no re-election, that the President should be selected by the Senate, and that a vote of a majority of the state legislatures should be sufficient to have the President removed from office. But none of these provisions made it into the final document. A proposal on July 5th resolved that the House should consist of one person per a certain number of population and the Senate should have equal representation among the states. This resolution was voted down almost unanimously - and eventually became law. If there was one fault or flaw with the proceedings, is was their often-used tactic of postponing the vote on any resolution that didn't seem to have a clear answer to which they would all agree. This meant that many inconsequential things were decided early while the tough choices were left until later. And often, when they tackled the tough issues, they found that other resolutions were no longer in harmony with them.

The rifts, or points of contention, between the delegates were apparent from the very beginning. The primary one was between representatives of large states and small ones. This is a debate that continues even today. While we have mostly accepted equal representation in the Senate, we still debate whether small states should have greater weight in the Electoral College than their populations would provide. The current National Popular Vote movement is the latest example of this debate. Another division was between those who felt all officers should be selected by popular vote and those who felt that all selection of national officers should be originated in the state legislatures. Some felt that the great mass of the people were too ill-informed, too easily swayed, and too subject to voting their own narrow issues to be entrusted with choosing national representatives. Others felt that any government that did not derive its power directly from the people would lose the peoples' support and eventually fail.

Some things, however, were fairly quickly decided upon. The idea that this Convention was merely to propose amendments to the Articles of Confederation was quickly abandoned. Both the Virginia and the Pinckney plans envisioned a bicameral legislature, an executive, and a judiciary, and that structure was adopted early - on the third full day of the convention. But it would be many weeks before they concluded how those officers were to be appointed, by whom, for what term, and for the administration of what powers, and in the meantime, many of these issues would raise their heads again.

Big vs Little

James Madison represented Virginia, the largest state by population. In fact, Virginia's population was nearly that of the next two states combined, and greater in population than the five smallest states combined. Thus, in James Madison's Virginia Plan, "the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants." That is to say that both houses of Congress would have proportional representation, either by population or by the amount of revenue submitted (a plan that was quickly abandoned as it would allow wealthier states to purchase more power in the national legislature.) Pinckney's plan also provided for proportional representation.

This idea was opposed by the smaller states. Under the Articles, each state received one vote on any measure. To move away from the one state - one vote system would drastically reduce small states' power in the national legislature. But the counter argument was that proportional representation gave large states power equal to their contribution, while equal representation allowed 28% of the population (the proportion of population in the seven smallest states) to dictate policy for the entire nation.

Both the Virginia and Pinckney Plans were submitted on May 29th. The debate on representation went on for several days before William Patterson of New Jersey submitted his plan on June 15th. Seeing that many delegates were in support of proportional representation, small state representatives began to challenge the authority of the Convention to radically alter the shape of the government, stating that their instructions had been to correct the Articles, not replace them in their entirely. Thus, the New Jersey Plan basically left the Articles of Confederation intact, with a single legislative body in which each state received a single vote. But it added Executive and Judiciary branches and gave the Congress new rights. 

Two days after the New Jersey plan had been proposed, Alexander Hamilton, who had been quiet throughout the first month of the Convention, finally spoke. His text was that neither plan was adequate, and he indicated with some subtlety that it was interesting that the small states did not object to radical alterations in the national government until it became clear that those changes would reduce their power. He then proposed his own plan, one which any reader would easily see tended to bring back the monarchy. Hamilton's plan was the strongest national plan, for all practical purposes ending state governments except for minor local matters, and even those being subject to veto by nationally-appointed Governors. One would almost think that he proposed this plan in order to make the Virginia plan look more reasonable by comparison.

In the end, Roger Sherman's Connecticut Compromise proposed our current legislature - a proportional House and a Senate in which each state got equal representation.

The People vs The States

The Signers of the Declaration of Independence were true believers in the principle, proposed by philosopher John Locke, that a legitimate government must gain its authority from the will of the governed. But the delegates in Philadelphia were concerned that the average local citizen, many of whom were illiterate and most of whom were totally unaware of any issues that didn't affect them personally, would be inadequate to choose representatives for a national government. 

From Madison's journal of May 31: 

Mr. Sherman opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.

Mr. Gerry. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts. it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.

(The note about the disturbances in Massachusetts were in reference to Shay's Rebellion, which had ended only a few months earlier.)

But others countered that a government so far removed from the people would be ignored unless the people were instrumental in its creation. They argued that by taking the people out of the equation, it opened up the door to collusion and cronyism between state legislators and their national counterparts. They argued that making the people responsible for the success of the national government, the people would rise to take a greater interest in the entire United States.

Mr. Mason argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Govt... It ought to know & sympathize with every part of the community... He admitted that we had been too democratic but was afraid we should. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people.

Mr. Madison considered the popular election of one branch of the national Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first—the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. 

(Yes, Madison referred to himself in the third person in his journals.)

In the Virginia and Pinckney plans, the House was chosen by the people and the Senate chosen by the House. In the Virginia plan, the House would have to choose from a list of potential Senators proposed by the state legislature. 

The New Jersey Plan did not change the nature by which the Congress was chosen - it was still a number of delegates from each state, chosen by the legislature thereof.

Hamilton's plan would have the House chosen by the people, but the Senate and President chosen by Electors who would be chosen by the people for that purpose. 

The Connecticut Compromise, of course, had the House chosen by the people and the Senate chosen by the state legislatures 'by whatever manner they should choose' - and this was ratified in the Constitution and remained that way until the Seventeenth Amendment in 1913 required them to be elected by the people.

The Executive

The selection of the Executive, and the powers he would possess, were issues in which the extremes of the various plans were well in view. The powers of the Executive ranged from practically none in the New Jersey plan to practically an absolute despot in Hamilton's plan. 

The Virginia Plan had the Executive selected by Congress, but gave the office no specific powers except the ability, with the Supreme Court, to veto legislation. No length of term was mentioned.

The Pinckney Plan was closest to what we see in our current Presidency:

He shall from time to time give information to the Legislature of the state of the Union & recommend to their consideration the measures he may think necessary—he shall take care that the laws of the United States be duly executed: he shall commission all the officers of the United States & except as to Ambassadors other ministers and Judges of the Supreme Court he shall nominate & with the consent of the Senate appoint all other officers of the United States. He shall receive public Ministers from foreign nations & may correspond with the Executives of the different States. He shall have power to grant pardons & reprieves except in impeachments—He shall be Commander in chief of the army & navy of the United States & of the Militia of the several States

Pinckney, however, gave no mention as to how the Executive would be chosen.

The New Jersey Plan was the most restrictive, giving the Executive no power except that to implement acts of Congress, and to direct the armed forces in times of war, but not to command any troops himself. In this plan, the Executive was to be chosen by the Congress, and there may be more than one and Congress may appoint any number they feel necessary to carry out the duties assigned. In debate, their plan almost sounded as though they meant to establish something like today's Cabinet, but with no true President. Their Executives were appointed by the Congress and served a single seven-year term.

Hamilton's counter to the New Jersey Plan was apparently designed to be totally unacceptable by the states. In his plan, the Executive would be chosen by electors who were in turn chosen by other electors who were chosen by the people after being apportioned into districts. The Executive would serve for life, and he would  have absolute power to veto any act of the Congress before it is implemented, to appoint state governors who would have the power to negate any act of a state legislature, to assign some national officers without review, and to suggest all others following review by the Senate. This executive was, in many ways, as close to a king as any suggestion of any Congress ever held in the US would ever propose.

In the end, an executive with powers similar to Pinckney's suggestions was created, with a manner of selection that most resembled that of the Hamilton Plan. 

There are many other debates and decisions that were made before the Constitution was finally signed and sent to the states for ratification. Future Founder's Follies issues will examine each one in detail, show its origins, how it was proposed to work, how it actually worked in practice, and some of the unintended consequences of those decisions. Look for more Founders' Follies in the weeks to come.

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Chredon wishes to express his great thanks to the web site The Online Library of Liberty. Their web site (oll.libertyfund.org) is a vast library of knowledge invaluable for the Constitutional researcher. Unfortunately, if I were live another 100 years and devote my every waking hour to the task, I doubt I could read it all.