Authors: James MacGregor Burns
The delegates at the moment could hardly see Madison’s logic—or at least the logical extension of his belief in checks and balances—that the national government must have a check on state governments just as each branch of government would have a check on the others. All the delegates could envisage was a radical threat to the very existence of their constituencies. And all they could see was Randolph—himself the governor of a state—threatening to submerge New Jersey and New Hampshire and the other
proud little republics in a great national pool. Did the Virginians really want this? When Randolph reiterated his proposals the following day, Charles Pinckney rose to ask whether the governor “meant to abolish the State Governments altogether.”
Randolph did not, of course, but the gauntlet had been thrown down. For the next two weeks the Virginians and their allies—James Wilson of Pennsylvania, along with several of the South Carolina delegation and others—pressed their arguments, while their opponents questioned them and attacked them whenever they could get the floor. Madison demonstrated his parliamentary skills in keeping control of the agenda; when he sensed that it would be premature for the assembly to discuss representation of the slave population in Congress, he smoothly moved that that matter be postponed.
The Virginians had powerful assistance from other delegates. The Pennsylvanians were especially helpful, especially prestigious, and especially nationalistic. Franklin, though so feeble that he sometimes asked others to speak his sentiments for him, intervened at critical moments. James Wilson, a Philadelphian born and educated in Scotland, had helped lead the cause of independence and later had become heavily involved—some said overextended—in banking and business investments. Portrayed by William Pierce of South Carolina, who wrote down pithy evaluations of his colleagues, as a “fine genius…well acquainted with Man and…all the passions that influence him,” and as “no great Orator” but “clear, copious, and comprehensive,” Wilson took an almost uncompromising position for a powerful national government. He was supported by the two wealthy and sophisticated Morrises, Robert and Gouverneur, and by several other members of a strong delegation, including Thomas Fitzsimmons, a merchant and banker and one of two Catholics among the delegates.
A noted man at the convention was the head of the Delaware delegation, John Dickinson, a distinguished lawyer, member of several Congresses, and the author of
Letters from a Farmer in Pennsylvania
, a widely read tract, in the years just prior to the Revolution, on the proper and improper powers of Parliament. Massachusetts could not send its ablest sons to the convention—John Adams was in London, Samuel Adams was aging, James Bowdoin bereft of his governorship, General Knox in New York serving as Secretary of War—but the Bay State was nevertheless able to contribute four gifted moderate nationalists: Nathaniel Gorham of Charlestown, Caleb Strong of Northampton, Rufus King of Newburyport, and Elbridge Gerry of Marblehead. This quartet was matched in prestige and articulateness by South Carolina’s trio of the experienced planter-lawyer John Rut-ledge, the eminent lawyer-general Charles Cotesworth Pinckney, and his
second cousin Charles Pinckney, deeply experienced in law, politics, and soldiering for a man still in his twenties. The strangest delegation was New York’s, consisting of the ambitious continentalist Alexander Hamilton “chaperoned”—and outvoted—by two cautious anti-Federalists.
On the face of it, the cardinal question facing the convention seemed simple: how much power to yield to the new federal government at the expense of the states? This “division of powers” was closely related, however, to “separation of powers.” How should power be divided up among the legislative, executive, and judicial branches of the new federal government? And these two questions were related in turn to extraordinarily complex issues of representation: by what persons should members of the two houses of Congress, the executive, and the judiciary be appointed or elected, for terms of what length, and with what checks or vetoes upon one another? And attitudes toward all these questions were closely affected by delegates’ calculations of local and regional advantage; by personal experience, interest, and ideology; by concern for the likely impact of the new constitution on issues such as slavery, western expansion, foreign relations, economic policy; by faith—or lack of it—in the people’s intelligence and in majority rule. The delegates had to think in terms of literally hundreds of possible permutations and combinations, with every new decision possibly upsetting positions previously arrived at.
The Virginia Plan provided a focus that helped avert parliamentary anarchy. Day after day Madison and his allies mustered the votes to put through major parts of their program, at least provisionally. By the second week of June, however, the opponents of the Virginia Plan were organizing a counterattack. The immediate issue was the most divisive that faced the convention: how the small states and the big states would be represented in Congress. And this issue was inseparable from the question of how much power Congress would wield.
On June 15 William Paterson of New Jersey rose to join battle—a gentleman of “about 34 ys. of age, of a very low stature,” Pierce noted, and of rather modest appearance and presence, but “one of those kind of Men whose powers break in upon you, and create wonder and astonishment.” He offered a counterplan to the Virginians’, supported by men who were less famous throughout America than delegates like Madison and Hamilton, but well known and highly regarded in their states, nonetheless: men like Roger Sherman, a Connecticut politician, self-taught lawyer, Yale treasurer; Luther Martin, Princeton graduate, a lawyer, a patriot, but tending toward both the bottle and the battological; John Lansing of Albany, owner of a vast tract of land in upstate New York, a friendly, good-looking man who generally took the anti-nationalist line. Paterson and his colleagues
seemed to challenge the Virginia Plan on almost every point, especially in their plea for a new national Congress of one chamber that would represent the large and the small states equally.
With the issue of confrontation clear, the convention moved on to new heights of oratory and argumentation. Emotions rose to such a pitch that there were veiled warnings of walkouts, and indeed of a separation of states and disintegration of the Union. But the convention was never in serious danger. The New Jersey Plan had accepted the major premises of the Virginia Plan: expanded power for the national government; the authority of that government to act directly on individuals and not merely on states; the national executive to have coercive authority over the states if necessary to enforce the law. Committees of compromising politicians were set up and the rival plans were adjusted to each other. Historians have generally written that the “Connecticut compromise” came to the rescue of the beleaguered convention, but in fact the main feature of the compromise—election of an upper chamber on the basis of equality between large and small states, and election of a lower chamber through popular representation—had been foreshadowed in the convention deliberations almost from the start. It was a natural compromise, granting both the Virginians and the New Jerseyites the kind of representation they wanted.
Because the vast majority of the delegates were so agreed on one fundamental concept, further agreements were reached during the remaining weeks of the convention. That concept was checks and balances. One might have expected the proponents of both plans to be disgruntled by the final compromise, because each chamber of Congress was given an absolute veto over the other, which meant that a “small state” Senate might block a “large state” House of Representatives, or vice versa. But neither side seemed to have this fear, mainly because all they wanted for their small states or large states was a “negative veto” to protect their existing liberties, not a positive power to join with other branches to use government in attempts to expand people’s liberties. This attitude and this decision would come back to haunt the future conduct of American public affairs.
It was also because of this fundamental agreement between large- and small-staters that the convention was able to resolve, for the time being at least, some of the other knotty problems before it. One of these was the national executive. The issue arose early in the convention, and it soon became clear that the delegates had highly mixed feelings about the mechanics of the executive. After Charles Pinckney called for a “vigorous executive” but feared that it might exercise powers over “peace and war” more appropriate to a monarchy, and after Wilson moved that the executive consist of a single person, a considerable pause ensued, and Rutledge
remarked on the “shyness of gentlemen” on this subject. They were less shy than uncertain. Sherman considered the “Executive magistracy” to be nothing more than an agency for carrying out the will of the new Congress. Gerry wanted a council annexed to the executive, “in order to give weight and inspire confidence.” Randolph condemned “a unity in the Executive” as the “foetus of monarchy.” Wilson replied: No, it would be the best safeguard against tyranny. Madison suggested mildly that before choosing between a unity and a plurality in the executive, they might fix the extent of executive authority.
On this matter too, the delegates’ differences were largely on points of detail. Certainly the executive should have some kind of veto over the legislative; should exercise initiative and assume responsibility in the making of foreign policy; should possess considerable control over his own executive branch, through the appointive power and the like. The President would be given authority to conduct war as Commander in Chief, but not the unilateral power to declare or make war; he would have no general prerogative to exercise emergency powers, although it was assumed he would act for the national self-defense. The Framers argued at length over some of these questions but did not sharply disagree, because they all wanted to grant the President a balanced and limited set of powers within the overall framework of the strategy of checks and balances.
The men of Philadelphia showed a far less firm grasp on the question of how to elect the executive. Knowing today the crucial differences between the parliamentary and presidential forms of government, we read the convention debates almost suspensefully as the delegates teeter back and forth between selection of the President by Congress and election by the state legislatures or by the voters. The delegates were more impressed by the dilemma than by the drama. Gerry opposed legislative selection of the President on the ground that Congress and the presidential candidates would constantly “intrigue” and “bargain and play into one another’s hands.”
In the end, the Framers decided on a jerry-built institution called the electoral college, designed to create a bulwark between the aroused passions of the people and the office of the chief executive and, in the spirit of the checks and balances, to make the executive and legislative branches responsible to different constituencies. The common assumption that George Washington would be the first President nourished agreement on the presidential election process.
On the national judiciary, most of the delegates were agreed as to its general shape and role but divided over mechanics. The judicial power would be vested in one supreme tribunal, and Congress would have
authority to establish inferior federal courts. The question of the reach of the judiciary was left obscure; most delegates assumed, however, that the Supreme Court would at least be able to invalidate acts of the states and probably also acts of Congress. Both powers would fit neatly into the checks and balances strategy. So should the manner of choosing the judges, though here the delegates disagreed. In one early session, James Wilson opposed congressional selection on the grounds that “Experience shewed the impropriety of such appointmts. by numerous bodies,” according to Madison’s notes. “Intrigue, partiality, and concealment were the necessary consequences.” But “Mr. Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy.” Madison was inclined to give the power to the Senate. Franklin “in a brief and entertaining manner” reminded the delegates of the “Scotch mode”—lawyers were given the power to nominate, and they always selected the ablest “in order to get rid of him, and share his practice [among themselves].” Eventually the delegates took advantage of the planned separate entities of the President and the Senate, the first of whom would propose, and the second confirm, appointments to the Supreme Court for life.
On the festering and rankling issue of slavery the delegates compromised from start to finish. Indeed, the delegates were already compromised before the start of the convention, for the “federal ratio” of three-fifths “representation” for slaves had been established under the Confederation and still reflected a crude balance of sections, ideology, and interests. Facing the delegates was not merely the stark issue of slavery itself; intertwined with it was the question of whether representation should be based on persons alone or also on property. Not only Southerners but Northerners like Rufus King and Gouverneur Morris believed in extra representation for property, and in the eyes of the law slaves were property, not persons.
For these white men the black man was always a brooding and unsettling presence (the black woman, even more than the white woman, was beyond the pale, beyond calculation). For the black man, the white man deciding on slave representation could be a cause only of sardonic reflection. For the issue never was slave representation, slave votes, slave power; it was whether slaves would not count in the representation of the South at all, or whether a
would enjoy a three-fifths increment of representation for every slave he owned. On this latter choice the slave could reflect that he had been granted three-fifths symbolic manhood. William Paterson told the delegates bluntly that slaves were “no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary, are
themselves property” and hence like other property “entirely at the will of the master.”