part five - wordpress.com · 2014. 10. 3. · in philadelphia. thirty-six-year-old james madison of...

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Birth of the Republic

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9 Sunrise at Philadelphia

Once the Revolution began, Americans set about creating the political machinery neces-sary to sustain an independent nation. The Second Continental Congress, called in1775, continued as an emergency, all-purpose central government until 1781, when theArticles of Confederation were finally ratified and a new one-house Congress was electedto function as the national government. Wary of central authority because of the Britishexperience, Americans now had precisely the kind of government most of them wanted:an impotent Congress that lacked the authority to tax, regulate commerce, or enforce itsown ordinances and resolutions. Subordinate to the states, which supplied it with fundsas they chose, Congress was powerless to run the country. Indeed, its delegates wanderedfrom Princeton to Annapolis to Trenton to New York, endlessly discussing where theyshould settle.

Patriots such as James Madison of Virginia, Alexander Hamilton of New York, andthe venerable George Washington fretted in their correspondence about the near paralysisof the central government and the unstable conditions that plagued the land. “An opinionbegins to prevail, that a General Convention for revising the Articles of Confederationwould be expedient,” John Jay wrote Washington in March 1787. Washington agreedthat the “fabrick” was “tottering.” When Massachusetts farmers rose in rebellion underDaniel Shays, Washington was horror stricken. “Are your people getting mad? . . .What is the cause of all this? When and how is it to end? . . . What, gracious God, isman! that there should be such inconsistency and perfidiousness in his conduct? . . . Weare fast verging to anarchy and confusion!”

Many of his colleagues agreed. There followed a series of maneuvers and meetings thatculminated in the great convention of 1787, a gathering of fifty-five notables sent toPhiladelphia to overhaul the feeble Articles of Confederation. Without authority, theyproceeded to draft an entirely new constitution that scrapped the Articles, created a newgovernment, and undoubtedly saved the country and America’s experiment in populargovernment. As James MacGregor Burns has noted, it was a convention of “the well-bred, the well-fed, the well-read, and the well-wed.” Most delegates were wealthy, for-mally educated, and youngish (their average age was the early forties), and more than athird of them were slave owners. The poor, the uneducated, the backcountry farmers, andwomen, blacks, and Indians were not represented. Throughout their deliberations, more-over, they compromised on the volatile slavery issue. “For these white men,” wrote onescholar, “the black man was always a brooding and unsettling presence (the blackwoman, even more than the white woman, was beyond the pale, beyond calculation).”

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G L O S S A R Y

ARTICLES OF CONFEDERATION(1781–1789) First American union, in which aweak central government was subordinate to thestates; it consisted of a one-house Congress thatexercised all judicial, executive, and legislativefunctions but that lacked the power to tax orregulate currency.

THE FEDERALIST (OR FEDERALISTPAPERS) Eighty-five letters written by AlexanderHamilton, James Madison, and John Jay defendingthe Constitution during the ratification process.

HENRY, PATRICK Fiery opponent of theConstitution in Virginia.

MADISON, JAMES Convention delegate fromVirginia; planter, slaveholder, and brilliant politicaltheorist who was responsible for much of thesubstance of the new Constitution.

MORRIS, GOUVERNEUR Conventiondelegate from Pennsylvania who assumed the chiefresponsibility for drafting the new Constitution; thepreamble, which began, “We the people,” was his

inspiration and was one of the single most importantacts of the Constitutional Convention.

NECESSARY AND PROPER CLAUSEProvision in the Constitution empowering Congressto enact all laws that were “necessary and proper”for executing its enumerated powers; the clausewould later become one of the chief building blocksof a strong central government.

NEW JERSEY PLAN Proposed by William Paterson, it called for a one-house legislature com-prised of members chosen by the state legislatures.

SHERMAN, ROGER Convention delegate fromConnecticut who proposed the first majorcompromise: it called for a lower house of Congressin which representation was based on population,and an upper house in which the states would berepresented equally.

SUPREME LAW OF THE LAND CLAUSEProvision in the Constitution designating it and thenational laws made under it as the supreme law ofthe land.

THREE-FIFTHS CLAUSE By this provision inthe Constitution, each slave was counted as three-

For most of the framers of the Constitution, order and national strength were more im-portant than the inalienable rights of blacks or women. Like their countrymen, mostcould simultaneously love liberty, recognize the injustice of slavery, yet tolerate bondageas a necessary evil.

As we enter our third century under the Constitution, we need more than ever to re-member that the framers were not saints but human beings—paradoxical, complex, un-predictable, and motivated by selfishness as well as high idealism. Yet, as BrianMcGinty shows in his account of “the miracle of Philadelphia,” the founders were ableto rise above petty self-interest to fashion what remains the oldest written national consti-tution, which in turn created one of the oldest and most successful federal systems in his-tory. McGinty tells the full story of the great convention; he describes the remarkablepersonalities gathered there, the debates and the compromises that shaped the new Con-stitution, the battle for ratification, and the forging of the Bill of Rights in the form ofthe first ten amendments.

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fifths of a person when it came to apportioningrepresentation in the lower house on the basis ofpopulation; the clause gave the white Southdisproportionate power in the House ofRepresentatives (the slaves, while counted thus, hadno political rights whatever).

VIRGINIA PLAN Proposed by EdmundRandolph, it called for a national executive withveto power, a national judiciary, and a two-houselegislature, with the lower house “elected by thepeople and the upper chosen by the lower.”

As Benjamin Franklin looked over the rosterof delegates at the start of the ConstitutionalConvention, he confessed that he was well

pleased. “We have here at present,” Franklin wrote afriend, “what the French call une assemblée des nota-bles, a convention composed of some of the principalpeople from the several states of our Confederation.”[Thomas] Jefferson, examining the same roster inParis, proclaimed the convention “an assembly ofdemi-gods.”

Most prominent among the “demi-gods” wasGeorge Washington. Early on the morning of May9, 1787, he had left Mount Vernon in his carriage.Washington was no stranger to the road from thePotomac to Philadelphia, for he had traveled it oftenduring the days of the First and Second ContinentalCongresses, oftener still while he was leading themilitary struggle for independence. He would haveliked to travel with Martha this time, but the mistressof the plantation on the Potomac had “become toodomestic and too attentive to her two little grand-children to leave home.” The retired general’sprogress was impeded more than a little by the joyfulgreetings he received at every town and stage stopalong the way. When he arrived in Philadelphia onMay 13, the biggest celebration of all began. Seniorofficers of the Continental Army greeted him on theoutskirts of the city, and citizens on horsebackformed an escort. Guns fired a salute and the bells ofChrist Church pealed as the great man rode into thecity.

Washington had reflected carefully before decid-ing to attend the Philadelphia convention. He wasfifty-five years old now, and his once-powerfulphysique was wracked with rheumatism. He was farfrom certain that the Philadelphia convention would

“Sunrise at Philadelphia,” by Brian McGinty is reproduced fromthe Summer 1987 issue of American History Illustrated with the permission of the Weider History Group, copyright

American History Illustrated. Illustrated.

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find a solution to the nation’s political problems andhad little wish to risk his reputation in an effort thatmight be doomed to failure. More important, whenhe had resigned his military commission in Decem-ber 1783 he had clearly stated his intention of spend-ing the rest of his days in private life. But his friendshad urged him to reconsider his decision and lendhis commanding influence and prestige to thePhiladelphia assembly.

Despite his lingering doubts about the conven-tion’s ultimate outcome, Washington had no reser-vations about its purpose. “The discerning part ofthe community,” he wrote a friend, “have long sinceseen the necessity of giving adequate powers toCongress for national purposes; and the ignorant anddesigning must yield to it ere long.” What mosttroubled the Virginian was the realization that hisfailure to go to Philadelphia might be interpreted as arejection of the convention. And so he decided,more out of a sense of duty than with any enthusi-asm, to make the long trip to Philadelphia. AlthoughWashington arrived there the day before the assem-bly was set to convene, he found that some delegateswere already in the city. The Pennsylvania delegates,who all lived in Philadelphia, were there, of course,headed by the venerable Dr. Benjamin Franklin.Franklin received Washington in the courtyard of hishome just off Market Street above Third, afterwhich the general repaired to the luxurious home ofRobert Morris on Market just east of Sixth, wherehe was to be a guest during the convention.

Franklin was eighty-one years old and beset by in-firmities (gout and gall stones) that made it all butimpossible for him to walk. But his mind was brightand alert, and he continued to play an active role inthe affairs of his city and state. He had returned in1785 from Paris, where he had been American min-ister to France, to enjoy comforts of a well-earnedretirement, but relented when members of theSupreme Executive Council of Pennsylvania askedhim to accept the post of president, an office thatcorresponded to the position of governor in other

states. By late March, on the motion of RobertMorris, Franklin had accepted a commission to at-tend the upcoming convention as a Pennsylvaniadelegate. . . .

Although Washington was the most celebrated ofthe Virginia delegates, he was not the first to arrivein Philadelphia. Thirty-six-year-old James Madisonof Montpelier in the Old Dominion’s OrangeCounty arrived in Philadelphia on May 3, 1787,from New York, where he had been serving inCongress. A slight man, barely five feet, six inchestall, Madison was shy and bookish. What he lackedin force and dynamism, the little Virginian morethan made up in thought and scholarship. Aftergraduating from the College of New Jersey (laterPrinceton), he had returned to his home state to takean active interest in public affairs. He served in theVirginia House of Delegates and Council of State be-fore accepting election to Congress, where he servedtwice (in 1780–83 and again in 1786–88). A closefriend of Thomas Jefferson, Madison came to theconvention with well-developed ideas about dem-ocratic processes and republican institutions. . . .

In all, seventy-four delegates were selected to at-tend the convention, and fifty-five actually appearedin Philadelphia. Although not all of the fifty-fivewould attend all of the sessions, it was a sizablegroup—large enough to give the spacious, panelledassembly room on the east side of the ground floorof the Pennsylvania State House (the same room inwhich the Declaration of Independence had beensigned in 1776) an air of excitement when the con-vention was in session.

In some ways the convention was as notable forthe men who were not there as for those who were.The absence of John Adams and Thomas Jeffersonwas sharply felt, for both of these veterans of 1776were widely regarded as American giants. Importantdiplomatic assignments kept them away fromPhiladelphia: Jefferson was American minister in


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Paris, while Adams filled the same post in London.Both were apprised of developments in the Pennsyl-vania city by faithful correspondents on the scene.Adams’s intellectual presence was strongly felt at theconvention, for he had recently published A Defenceof the Constitutions of Government of the United States ofAmerica, a treatise that explained and analyzed theconstitutional structures of a half-dozen Americanstates. Jefferson exchanged letters with James Madi-son and, at the younger man’s request, sent himbooks on constitutional theory and history, for

Madison was particularly interested in the histories ofancient confederacies. . . .

George Washington’s presence in Philadelphia wasenough to reassure all those who worried about theabsence of Adams, Jefferson, [Richard Henry] Lee,[Patrick] Henry, and [John] Jay. When the hero of theRevolution entered Philadelphia at the head of a pa-rade of cheering well-wishers, nearly everyone in thecity was able to breathe more easily. If anyone couldguarantee the results of the Philadelphia assembly,surely the Squire of Mount Vernon could. New

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York’s Henry Knox wrote the Marquis de Lafayette:“General Washington’s attendance at the conventionadds, in my opinion, new lustre to his character. Se-cure as he was in his fame, he has again committed itto the mercy of events.” “This great patriot,” said thePennsylvania Herald, “will never think his duty per-formed, while anything remains to be done.”

It is not surprising that so many of the delegates(more than half ) were lawyers, for members of thelegal profession had long led the struggle for inde-pendence. Nor was it remarkable that many werepresent or former public officials. Fully four-fifths ofthe delegates were serving in or had been membersof Congress, while even more had been involved, atone time or another, in colonial, state, and localgovernments. Many had helped draft their states’constitutions, and about half were veterans of mili-tary service. There were merchants, farmers, and oneor two men who described themselves as “bankers”in the group. Three of the delegates were physicians,and one, Franklin, was a printer.

On the whole, the delegates were remarkablyyoung: The average age was forty-three. Jonathan Day-ton of New Jersey, at twenty-six, was the youngest;Franklin, at eighty-one, the oldest. Many had humbleorigins. Franklin had once been an indentured servant,and [Roger] Sherman of Connecticut had begun hisworking life as a cobbler’s apprentice. But most dele-gates had acquired comfortable positions in life. A fewranked among the richest men in the country.

In a letter to Jefferson, Franklin expressed cautiousoptimism about the convention. The delegates weremen of character and ability, Franklin said, “so that Ihope Good from their meeting. Indeed,” he added,“if it does not do good it must do Harm, as it willshow that we have not Wisdom enough among usto govern ourselves; and will strengthen the opinionof some Political writers, that popular Governmentscannot long support themselves.” . . .

George Washington appeared regularly in theState House (the historic building would not be

known as Independence Hall until the nineteenthcentury) at the appointed time each day, waiting pa-tiently for the stragglers to appear and be recorded aspresent. When on May 25, the delegates of sevenstates were at last in their chairs, the convention wasready to begin.

First, a presiding officer had to be selected. No-body in attendance had any doubt that the honorwould be conferred on Washington; the only uncer-tainty was who would nominate him. BenjaminFranklin had planned to do so, but it was raining onMay 25 and he was not well enough to make thetrip from his home to the State House in poorweather. The motion was made in his stead byRobert Morris (Pennsylvania) and seconded by JohnRutledge (South Carolina). Without discussion, thequestion was put to a vote, and Washington wasunanimously elected president of the convention.Morris and Rutledge escorted the Virginian to thePresident’s Chair. The chair belonged to the Penn-sylvania Assembly and had been used by all the presi-dents of the Continental Congress when it had metin Philadelphia. Surmounting its back was the carvedand gilded image of a sun that, before the assemblywas concluded, would become a symbol for theconvention and its work.

Second, rules for the convention’s proceedingshad to be adopted. One rule . . . was readily ap-proved. It provided that “no copy be taken of anyentry on the journal during the sitting of the Housewithout the leave of the House. That members onlybe permitted to inspect the journal. That nothingspoken in the House be printed, or otherwise pub-lished, or communicated without leave.”. . .

To impress on the delegates the seriousness withwhich the rule of secrecy was to be enforced, armedsentries were posted in the hall beyond the assem-bly chamber and on the street outside the StateHouse. . . .

The delegates, on the whole, were scrupulous intheir observance of the “rule of secrecy”; so scrupu-lous, in fact, that for nearly a generation after the


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convention the positions taken during the debateswere still largely unknown to the public. Washing-ton even refused to write about the debates in hisdiary. A few delegates kept private records thatfound their way into print long after the events atPhiladelphia had become history. The best recordwas kept by James Madison. “I chose a seat,” theVirginian later explained, “in front of the presidingmember, with the other members on my right handand left hand. In this favorable position for hearingall that passed I noted in terms legible and abbrevia-tions and marks intelligible to [no one but] myselfwhat was read from the Chair or spoken by themembers; and losing not a moment unnecessarilybetween the adjournment and reassembling of theConvention I was enabled to write out my dailynotes during the session or within a few finishingdays after its close. . . . I was not absent a single day,nor more than a casual fraction of any hour in anyday, so that I could not have lost a single speech, un-less a very short one.” Published in 1840, Madison’snotes form the single best record of the convention’sproceedings.

The Virginia delegates came to the convention’sfirst deliberative session on May 29 equipped with acomprehensive plan for a new charter of government.Although the “Virginia Plan” had been discussed atlength by members of that state’s delegation, it borethe mark of Madison’s careful thought and planningon every page. Edmund Randolph, who, as governorof the state, was titular leader of the Virginia delega-tion, presented the plan to the convention. The Vir-ginia Plan proclaimed that it was designed to “correctand enlarge” the Articles of Confederation, but it wasactually a blueprint for a whole new structure of gov-ernment. Under it, the “national legislature” wouldconsist of not one, but two houses, with the lowerelected by the people and the upper chosen by thelower. There would be a “national executive,” withveto power over legislative acts, and a “national judi-

ciary,” with authority to decide cases involving “na-tional peace or harmony.”

The Virginia plan was a tempting subject for de-bate, but the convention’s leaders believed morefundamental questions had to be decided first—questions upon which all other as yet undecidedquestions depended.

First among these threshold questions waswhether the convention ought to content itself withrevising the Articles of Confederation or propose anentirely new government with truly national pur-poses and powers. Delegates from at least four of thestates had been sent to Philadelphia with strict in-structions to consider revisions of the Articles andnothing else; and Congress, in its resolution approv-ing the convention, had purported to limit the con-vention to revising the old charter.

Next the delegates resolved to organize into aCommittee of the Whole. The purpose of this par-liamentary maneuver was to keep discussions infor-mal and to allow the representatives to change theirvotes until near the end of the convention. The de-vice promoted open minds and frank speech.

As discussion began, South Carolina’s CharlesPinckney expressed concern that, if the conventionproposed a national government, the states mightcease to exist. But Edmund Randolph (Virginia) as-sured him that a national government would notprevent the states from continuing to exercise au-thority in their proper spheres. John Dickinson(Delaware) and Elbridge Gerry (Massachusetts) ad-mitted that the Articles of Confederation were de-fective, but they thought that the convention shouldcorrect their defects, not toss them aside.

Gouverneur Morris (Pennsylvania) expressed hisbelief that a national government was essential to thefuture of the country. “We had better take a supremegovernment now,” Morris warned his fellow-dele-gates, “than a despot twenty years hence—for comehe must.” Agreeing with Morris, George Mason (Vir-ginia) argued that the country needed a government


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that could govern directly, without the interventionof the states.

On May 30, on the motion of Gouverneur Mor-ris, the convention decided, by a vote of six states toone, that “a national government ought to be estab-lished consisting of a supreme Legislative, Executiveand Judiciary.” Almost before they knew it, the del-egates had decided what was to be the single mostimportant issue of the convention. From that dayforward, the convention would be irrevocably dedi-cated to the construction of a national governmentfor the United States.

On May 31 the Committee of the Whole (the con-vention delegates) proceeded to consider other poten-tially explosive questions: whether the “national legis-lature” should have two houses or one; whethereither or both houses should be elected by the people;and how the national government should function interms of the citizens and the states. . . . Surprisingly,the delegates quickly agreed that there should be twohouses in the legislature, that the lower house shouldbe popularly elected, and that the legislature shouldhave broad powers “to legislate in all cases to whichthe separate States are incompetent.”

After deliberating for two weeks, the Committeeof the Whole presented its recommendations to theconvention. The proposed form of governmentfollowed the terms of the “Virginia Plan” closely—too closely, some delegates thought. Elbridge Gerry(Massachusetts) protested that some decisions mighthave been made too hastily, “that it was necessaryto consider what the people would approve.” Tak-ing his cue from Gerry, William Paterson (NewJersey) proposed an alternative to the “VirginiaPlan.” Introduced on June 15, Paterson’s “NewJersey Plan” suggested an entirely different frame ofgovernment: a unicameral legislature with memberschosen by the state legislatures but with powers to“pass Acts for the regulation of trade and com-merce.” . . .

The delegates now decided to refer both the NewJersey Plan and the Virginia Plan to the Committeeof the Whole for discussion.

The debates were now becoming contentious.The large states, led in size by Virginia, believed itwas essential to do away with the old principle em-bodied in the Articles of Confederation of “onestate, one vote.” Under this rule, voters in the largestates were effectively disfranchised by those in thesmall states. For their part, the small states insistedthey could never consent to any rule that would de-prive them of an equal voice in the federal govern-ment. If such a resolution were passed, Delaware’sGeorge Read announced, he would have no choicebut to leave the convention, for his credentials for-bade him to consent to such a measure.

Washington had been pleased when, in the earlydays of the convention, the delegates quickly andreadily reached agreement on difficult questions.Now, it seemed, they were arguing about every issuethat came before them. Discouraged, he wrote homefor additional clothing, explaining that he saw “noend to my staying here.” The sweltering heat (somePhiladelphians thought the summer of 1787 was theworst since 1750) added to the bad humor of the del-egates. Franklin, noting the rancor of the debates, sug-gested the representatives invite clergymen to attendtheir sessions and offer daily prayers. Roger Sherman(Connecticut) seconded the motion, but AlexanderHamilton (New York) doubted the wisdom of callingfor “foreign aid.” Many different faiths were repre-sented among the delegates, and it would have beendifficult to meet the demands of them all. Besides, acall for prayer might signal to the public outside thehall that all was not well inside. After some discussion,Franklin’s proposal was dropped.

Sensing that the convention was approaching animpasse, Roger Sherman (Connecticut) rose to pro-pose the convention’s first important compromise.Representation in the lower house, Sherman suggested, should be based on population, while

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representation in the upper house should be equal.Sherman’s proposal was ingenious. Its chief virtuewas that it satisfied neither the large states nor thesmall states. Hamilton called it a “motley measure,”and Madison said it was a “novelty & a compound.”Because it met the demands of neither interest, how-ever, it was acceptable to both. On July 16, by avote of five states in favor, four states against, andone (Massachusetts) evenly divided, the “Connecti-

cut Compromise” was passed. Another major hurdleto agreement had been overcome.

But many difficult questions still remained to be re-solved. After spirited debate, the convention decidedthat each state would be allotted two representatives(senators) in the upper house of the national legisla-ture and that the senators would vote “per capita,”that is, individually. Additional debate prompted thedelegates to decide that the “national executive” (the

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president) would be chosen neither by the nationallegislature nor by the people directly, but by a body ofmen (the electoral college) specially chosen for thepurpose. George Mason (Virginia) proposed thatmembership in the national legislature be limited to“citizens of the United States,” and no one objected.

By July 26, the convention felt it had made enoughprogress on the broad questions that faced it to safelyproceed to more particular issues. To this end, it re-ferred the proposed Constitution to a Committee ofDetail with instructions to report back on August 6with specific proposals to implement the convention’sbroad intentions. Its five members, John Rutledge(South Carolina), Edmund Randolph (Virginia),James Wilson (Pennsylvania), Oliver Ellsworth (Con-necticut), and Nathaniel Gorham (Massachusetts) rep-resented all sections of the country; the committeeconstituted a kind of “miniature convention.”

From July 26 to August 6, the committee pro-posed, debated, revised, and, finally, resolved a hostof important questions. It spelled out the powers ofthe national legislature, including a power that theArticles of Confederation had never given the oldCongress: “to lay and collect taxes, duties, impostsand excises.” The committee proposed to grant thenational legislature the power to make all laws thatshould be “necessary and proper” for carrying out itsspecific powers. The “necessary and proper” clausewould later become one of the chief building blocksof a strong central government. The committee de-cided the Supreme Court should have jurisdiction todecide all “Cases arising under the Laws passed bythe general Legislature.” And, significantly, theCommittee of Detail provided that acts of the na-tional legislature, treaties, and “this Constitution”should all be the “supreme Law of the Land.”

With the basic structure of the proposed govern-ment now agreed upon, the convention appointed aCommittee of Style and Arrangement to draft theConstitution. Some of the best penmen of the con-vention were appointed to the committee—James

Madison (Virginia), Alexander Hamilton (NewYork), William Samuel Johnson (Connecticut), andRufus King (Massachusetts). But the chief responsi-bility for drafting the document fell to the talentedGouverneur Morris (Pennsylvania). Years later,Morris would write that the Constitution “was writ-ten by the fingers, which write this letter.” Madison,who was responsible for much of the substance ofthe document, admitted “the finish given to the styleand arrangement of the Constitution fairly belongsto the pen of Mr. Morris.”

Morris worked quickly and apparently with inspi-ration. One of the last sections he composed was thePreamble. As originally drafted by the Committee ofDetail, the Preamble had stated:

“We the People of the States of New-Hampshire,Massachusetts, Rhode-Island and Providence Planta-tions, Connecticut, New-York, New-Jersey, Penn-sylvania, Delaware, Maryland, Virginia, North Car-olina, South-Carolina, and Georgia, do ordain,declare, and establish the following Constitution forthe Government of Ourselves and our Posterity.”

The Committee of Style and Arrangement rewrotethe same passage to read:

“We the People of the United States, in Order toform a more perfect Union, to establish Justice, in-sure domestic Tranquility, provide for the commondefence, promote the general Welfare, and securethe Blessings of Liberty to ourselves and our Poster-ity, do ordain and establish this Constitution for theUnited States of America.”

The change from “We the People” of named statesto “We the People of the United States” did not seemparticularly significant to the delegates when they readand considered Morris’s draft. To history, however, itbecame one of the single most important acts of theConstitutional Convention. It would signify that theUnion was the product, not of thirteen states, but ofmore than three million citizens. It was not a compactbetween sovereign governments, but a contract towhich the citizens were parties.


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When the Committee of Style presented its draftto the convention, there was a flurry of last-minuteobjections. Some delegates thought that Congress’sright to overrule presidential vetoes should be by avote of two-thirds rather than three-fourths of bothhouses. Others thought the document ought toguarantee the right of trial by jury in all civil cases.George Mason (Virginia) demanded that a bill ofrights (similar to the precedent-setting Bill of Rightshe drafted for the Virginia Constitution in 1776) beappended to the Constitution. But the hour was late,and the delegates were opposed to making major re-visions. All states on the convention floor (includingMason’s own Virginia) voted “no” to adopting a billof rights.

Some delegates left the convention before the finalcopy of the Constitution was prepared. Others re-mained in Philadelphia, but only to express their op-position to the final version of the charter. GeorgeMason, obstinate on the point of a bill of rights, an-nounced that he “would sooner chop off his righthand than put it to the Constitution.” Another Vir-ginian, Edmund Randolph, who had first proposedthe “Virginia Plan” that had formed the basis for manyof the Constitution’s major provisions, now doubtedwhether the people of his state would approve thedocument, and announced that he could not sign it.Elbridge Gerry (Massachusetts) thought that membersof the Senate would hold their offices too long, thatMassachusetts would not be fairly represented in theHouse of Representatives, and that a Supreme Courtwithout juries would be a “Star-Chamber as to civilcases.” He announced that he would not sign.

Word was circulating in Philadelphia that Penn-sylvania’s Benjamin Franklin also objected to theConstitution, but the philosopher-statesman soonput an end to such speculation. On Monday morn-ing, September 17, after the secretary of the conven-tion read a newly engrossed copy of the document,Franklin asked for permission to present a speech hehad written. Because it was painful for him to stand,he asked James Wilson to read it for him:

“I confess that there are several parts of this consti-tution which I do not at present approve, but I amnot sure I shall never approve them: For having livedlong, I have experienced many instances of beingobliged by better information or fuller consideration,to change opinions even on important subjects,which I once thought right, but found to be other-wise. . . . Thus I consent, Sir, to this Constitutionbecause I expect no better, and because I am notsure, that it is not the best.”

Before the Constitution could be signed, NathanielGorham (Massachusetts) proposed that one finalchange be made in the document. Where the charterprovided that each member of the House of Repre-sentatives would represent 40,000 citizens, Gorhamsuggested that the number be changed to 30,000. Sev-eral of the delegates felt that 40,000 was too large aconstituency to be represented by one man. RufusKing (Massachusetts), Daniel Carroll (Maryland), and,finally, George Washington announced their agree-ment with Gorham. Although Washington had previ-ously maintained a rigorous silence on disputed ques-tions, he felt that he should express his opinion on thismatter. He hoped that grounds for objection to theConstitution would, wherever possible, be elimi-nated. He believed that 40,000 was too large a con-stituency, and, although the hour was late, he still fa-vored the change. Without objection, the word“forty” was erased and the word “thirty” written in itsplace on the engrossed copy.

The question now arose as to the manner inwhich the Constitution should be signed. Quorumsin all of the represented states (although not all of thedelegates in those states) were in favor of submittingthe document to ratification. Most delegates wishedto present the document to the public in the mostfavorable light possible and, to that end, hoped togive the impression of unanimity. Accordingly,Franklin moved that the signature clause be made toread: “Done in Convention by the UnanimousConsent of the States present.” The motion was


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passed by a vote of eleven states to one. (South Car-olina was divided on the issue. Charles Pinckney andPierce Butler thought the clause too ambiguous.)

That same day, September 17, nearly four monthsafter the convention began, the engrossed copy ofthe Constitution was signed. Proceeding in the tradi-tional order of states from north to south, the dele-gates walked to the front of the room, bent over thetable in front of the President’s Chair and, with quillpen dipped in iron gall ink, signed their names onthe last of the four pages of parchment. There werethirty-eight delegates and thirty-nine signatures(George Read of Delaware, who had overcome hisearlier opposition to the document, signed both forhimself and for John Dickinson, who was feeling illand had gone home to Wilmington). Only threemembers present—Edmund Randolph (Virginia),George Mason (Virginia), and Elbridge Gerry (Mass-achusetts)—abstained. Thirteen members had left theconvention before the final day.

Appropriately, Benjamin Franklin had a few lastwords. While the other delegates signed their names,the old patriot looked thoughtfully toward the Presi-dent’s Chair. He told a few delegates near him thatpainters had found it difficult “to distinguish in theirart a rising from a setting sun. I have,” said he,“often and often in the course of the Session, and thevicissitudes of my hopes and fears as to its issue,looked at that behind the President without beingable to tell whether it was rising or setting: But nowat length I have the happiness to know that it is a ris-ing and not a setting Sun.”

After the Constitution was signed and the lastgavel fell, the delegates filed out of the State House,then proceeded to the City Tavern on Second Streetnear Walnut. The City Tavern was one of oldPhiladelphia’s most enjoyable gathering places andhad been a favorite haunt of the delegates during theconvention. The members shared a last dinner to-gether, complete with toasts and speeches, then badeeach other a fond farewell. George Washington’s

mind was still excited when he returned to his roomat Robert Morris’s house. Washington tended tosome business matters and then, in the words of hisdiary, “retired to meditate on the momentous workwhich had been executed.”

The newspapers were full of news from the con-vention. The delegates’ self-imposed “rule of se-crecy” had heightened the air of mystery surround-ing the meeting, and now it seemed as if the publiccould not hear enough about what had happenedduring the convention. In Philadelphia on Septem-ber 19, the Pennsylvania Packet and Daily Advertiserpublished the full text of the Constitution. Just underthe newspaper’s masthead, in boldface type, were thewords of the Preamble, beginning with the soon-to-be memorable phrase: “We, the People of theUnited States.” Within weeks, the Constitution wasreprinted in newspapers, pamphlets, and booklets allover the country. . . .

Article VII of the Constitution prescribed theprocess by which the charter was to be ratified. Whenconventions in at least nine states had approved thedocument, the Constitution would be “established”between the ratifying states. Until ratifying conven-tions had assembled, deliberated, and expressed theirapproval, however, the document would be nothingmore than a hope for a better future. . . .

When Congress received the document, some of itsmembers were baffled. The Articles of Confederation,from which Congress derived its authority, did notauthorize it to do away with the Confederation andreplace it with a national government. Those membersof Congress who had also attended the Philadelphiaassembly argued strongly that Congress should followthe wishes of the convention and submit the Consti-tution to state ratifying conventions. Richard HenryLee, a Congressman from Virginia, objected. Leethought the “Federalists” (as proponents of the Con-stitution were now being called) were trying “to pushthe business on with dispatch . . . that it might beadopted before it had stood the test of reflection anddue examination.” But a majority of Congress favored


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the document, paving the way for passage of a resolu-tion referring the Constitution to the legislatures, bythem to be “submitted to a convention of Delegateschosen in each state by the people thereof in confor-mity to the resolves of the Convention. . . .”

[Meanwhile], proponents and opponents of theConstitution began to argue their cases. James Madi-son [noted:] “The advocates for it come forward morepromptly than the adversaries. . . . The sea coast seemseverywhere fond of it.”

Indeed, many were “fond” of the Constitution—but hardly anyone entertained the notion that it was“perfect.” The charter was the work of differentmen with various ideas, the product of a long stringof concessions and compromises. To be sure, itcalled for the establishment of some notable features:three autonomous branches of government, each in-vested with power and authority to check the ex-cesses of the others; a Congress consisting of twohouses with specifically enumerated powers; a na-tional judiciary; and a strong executive. And it pro-vided the framework for a federal government thatcombined national supremacy with state autonomyand made both subservient to the popular will.

But the document was not free of anomalies. Forinstance, members of the House of Representativeswere to be apportioned among the states “accordingto their respective numbers,” but the “numbers”were to be calculated in a curious way: all “free per-sons” were to be counted, as were persons “boundto service for a term of years,” but “Indians nottaxed” were to be excluded, and only three-fifths of“all other persons” were to be counted. The dele-gates knew, of course, that the words “all other per-sons” referred to slaves and that, by allowing thesouthern states to count three-fifths of their slaves,the document gave tacit recognition to slavery. Butthe Constitution by no means approved slavery; in-deed, many delegates believed the institution shouldbe abolished throughout the country. The documentdid require enforcement of fugitive slave laws, but italso empowered Congress to forbid the importation

of new slaves into the country after the year 1808. Inits curious and conflicting references to slavery, theConstitution was reflecting the concessions andcompromises by which it was produced.

In many ways, the charter was a hodgepodge. Andyet it was bound together by common values: dedi-cation to the ideals of American independence andliberty, and a conviction that a strong federalgovernment was the best way to safeguard thoseideals. . . .

By the end of October, however, Madison couldsee that the tide of opinion in the country was be-ginning to turn away from the Constitution. In Vir-ginia, Richard Henry Lee and Patrick Henry an-nounced their intention to work against ratification.In Massachusetts, James Winthrop (writing underthe pseudonym of “Agrippa”) published letters thatcharged that the Constitution gave too much powerto the central government and not enough to thestates. In New York, Melancton Smith published anAddress to the People of the State of New York in whichhe warned that the Constitution would create an“aristocratic tyranny.” Meanwhile, in Pennsylvania,Samuel Bryan published a broadside predicting that,under the Constitution, the United States would be“melted down into one empire” with a government“devoid of all responsibility or accountability to thegreat body of the people.”

Richard Henry Lee’s views were recorded in hisLetters from the Federal Farmer. Forgetting for the mo-ment his own privileged background, Lee said thatthe Constitution was the work of “the artful andever active aristocracy.” He agreed with GeorgeMason that the Constitution should include a bill ofrights. He also thought that it should provide for acouncil to assist and advise the president and guaran-tee the right of jury trial. “If our countrymen are sosoon changed,” Lee charged, “and the language of1774 is become odious to them, it will be in vain touse the language of freedom, or attempt to rousethem to free inquiries.”


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Patrick Henry warned Virginians who lived in theregion called Kentucky (it would not become a stateuntil 1792) that the Constitution favored the easternpart of the country at the expense of the west andthat it would inevitably lead to loss of navigationrights on the Mississippi. Henry was angered by thePreamble’s reference to “We the People” and chal-lenged the right of the Philadelphia delegates to usesuch an all-encompassing term. “[W]ho authorizedthem to speak the language of We the people,” Henrydemanded, “instead of, We the states? States are thecharacteristics and the soul of a confederation. If thestates be not the agents of this compact, it must beone great consolidated national government, of thepeople of all the states.”

In New York on September 27 the newspapersbegan to publish a series of articles attacking the Con-stitution and the Philadelphia convention. Signedwith the pseudonym “Cato,” the letters were widelysupposed to have been written by New York’sstaunchly antifederalist governor, George Clinton.Other letters, similar in tone and content, appearedunder the names of “Sydney” and “Brutus” and werewidely recognized as pseudonyms for Clinton’s sup-porters. Alarmed by the vigor of the “anti-Federalist”letters, Alexander Hamilton decided to mount a reply.

Hamilton had been the only New Yorker to signthe Constitution. He now tried to use the influencehe had with other New York politicians. Hamiltonwas one of the state’s most brilliant lawyers and ef-fective writers. His home and law office on WallStreet were not far from the residences of John Jayand James Madison. The three soon joined forces toanswer the attacks of “Cato,” “Sydney,” and “Bru-tus” with a series of letters [to various newspapers]signed with the name of “Publius.”. . .

There were eighty-five letters from “Publius”—fifty-five written by Hamilton, twenty-nine by Madi-son, and five by Jay. Never one to lose the opportu-nity to publicize his views, Hamilton arranged with aprinting firm to publish the letters in book form, andon May 28, 1788, a two-volume edition bearing the

title of The Federalist was issued by J. and A. McLean inNew York. . . . The book was both a reasoned defenseof the Constitution and a ringing call for its ratifica-tion. “The establishment of a Constitution,” Hamil-ton wrote in his last Federalist paper, “in time of pro-found peace, by the voluntary consent of a wholepeople, is a prodigy, to the completion of which Ilook forward with trembling anxiety.”. . .

The demand for a bill of rights had become a clar-ion call of the antifederalists. In his speeches and let-ters, George Mason, who had written the VirginiaBill of Rights, argued that the people needed protec-tion against a strong and powerful central govern-ment and that they could secure that protection onlyby specifically limiting the government’s powers.Supporting Mason, Richard Henry Lee complainedof the Constitution’s lack of provisions to protect“those essential rights of mankind without whichliberty cannot exist.”

Prominent supporters of the Constitution gener-ally opposed a bill of rights. Hamilton thought such adeclaration not only unnecessary, but “dangerous.”Under the Constitution, the federal governmentwould have only the powers that the people grantedit. Therefore, Hamilton argued, the governmentcould have no power to abridge the people’s rightsunless they gave it that power. He pointed out thatthe Constitution already contained many provisionsguaranteeing basic civil rights: protection of the writof habeas corpus, a prohibition against bills of attainderand ex post facto laws, strict proof requirements in allprosecutions for treason, and a guarantee of the rightof trial by jury in all criminal cases except impeach-ments. A bill of rights, Hamilton said, would in-evitably “contain various exceptions to powerswhich are not granted; and on this very accountwould afford a colourable pretext to claim more thanwere granted. For why declare that things shall notbe done which there is no power to do?”

South Carolina’s Charles Cotesworth Pinckneypointed out that bills of rights “generally begin withdeclaring that all men are by nature born free.”


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“Now, we should make that declaration with a verybad grace,” Pinckney said, “when a large part of ourproperty consists in men who are actually bornslaves.” Connecticut’s Roger Sherman said, “No billof rights ever yet bound the supreme power longerthan the honeymoon of a new married couple, un-less the rulers were interested in preserving therights.” And Pennsylvania’s James Wilson sneered:“Enumerate all the rights of men? I am sure that nogentlemen in the late Convention would have at-tempted such a thing.”

James Madison at first agreed with Hamilton that abill of rights was unnecessary and potentially danger-ous. But, by the fall of 1788, he had become con-vinced that such a declaration was not only desirablebut essential to ratification of the Constitution. OnOctober 17, 1788, Madison expressed his belief thatan enumeration of the “fundamental maxims of freeGovernment” would be “a good ground for an ap-peal to the sense of community” and “counteract theimpulses of interest and passion.” Madison pledgedthat, if the new Constitution went into effect, hewould do everything in his power to see that it wasamended in such a way as to protect basic humanrights from federal infringement. . . .

[The ratification process began in Delaware, whoseconvention voted unanimously to endorse the newConstitution. The conventions of several other statesdid likewise. New Hampshire was the ninth and de-ciding state to ratify. The federalists found themselveshard-pressed in Virginia, where Patrick Henry andother antifederalists resisted tenaciously. “Whither isthe spirit of America gone?” Patrick Henry cried.“Sir, the American spirit, assisted by the ropes andchains of consolidation, is about to convert this coun-try into a powerful and mighty empire.” Virginia nar-rowly approved the Constitution, as did New York.North Carolina was the twelfth state to ratify, but tinyRhode Island, the only state that had refused to send adelegation to Philadelphia, held out until May 1790,when it finally approved the Constitution and joined

the new Union. Meanwhile, Congress had adopted]an “ordinance” setting March 4, 1789, as the date andNew York City as the place for the first meeting of thefirst Congress under the Constitution. Members ofthe electoral college were chosen, and on February 4they cast their ballots. To nobody’s surprise, theirunanimous choice as the first president under theConstitution was George Washington.

James Madison attended the new Congress as amember of the House of Representatives from Or-ange County, Virginia. He was denied a Senate seatby a vindictive Patrick Henry, who declared him “un-worthy of the confidence of the people.” In theHouse, Madison took responsibility for introducingthe Bill of Rights that Henry, George Mason, andother antifederalists had demanded. . . . [This took theform of seventeen amendments to the new Constitu-tion; Congress approved most of them and sent themto the states for ratification. By the end of 1791, therequisite three-fourths of the states had approved tenof the amendments, which afterward became knownas the American “Bill of Rights.”] Now United Statescitizens everywhere could be sure that their most val-ued civic rights—freedom of speech and of the press,freedom of assembly and of religion, freedom fromunreasonable searches and seizures, the right to beararms, the privilege against self-incrimination, the rightto due process of law, the right to trial by jury, and theright to representation by counsel—would be pro-tected from federal abridgment.

The process was complete. . . . The United Stateshad become a nation.

Q U E S T I O N S T O C O N S I D E R

1 James Madison was not destined to be a happy pres-ident (1809–1817), but he was a brilliant statesmanand the true father of the Constitution. In what waysdid he shape the drafting and passage of the Constitu-tion? How did he overcome his own prejudices and


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the pressures exerted on him by his fellow Virginiansto ensure the final success of the document?

2 Why did the delegates to the Constitutional Con-vention, instead of revising the Articles of Confedera-tion as they were charged to do, scrap that documentand devise an entirely new plan of government? Whatmight have been the consequences had they kept theArticles of Confederation?

3 The framers of the Constitution were all well-to-do, socially prominent Americans. Did they producea document that was fundamentally democratic orundemocratic? How did they feel about the will ofthe majority? What steps did they take to controlthat majority?

4 In many ways, as author McGinty says, the Con-stitution was a hodgepodge, a collection of ideasbased on northern or southern biases, agricultural orcommercial interests, federalist or antifederalist senti-ments. What kinds of compromises did the represen-tatives of these divergent interests finally accept?

5 How did the framers deal with the issue of slav-ery? Where, in particular, did they find it an embar-rassment? Wherein did they sow the seeds of futurediscord?

6 The Constitution nearly failed the battle for ratifi-cation. What was the most significant area of dissen-sion? What forms of suasion and compromise didboth federalists and antifederalists employ?

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