Penguin History of the United States of America (37 page)

This was Virginia’s hour. No state had done more to carry the Revolution to victory; no statesmen had done more than her delegates to summon and prepare for the convention. Madison resolved, not only to take an active part in the deliberations, but to be their chronicler. He sat in the front row, under the President’s nose, and recorded what everyone said, fairly and fully: without him posterity would know very little of what went on. Before the other delegates arrived, the Virginians caucused, and concocted the so-called Virginia plan: suggestions for a new constitution which Randolph got to his feet to propose as resolutions on 29 May; and the real work of the convention started.

To begin with, the delegates made remarkably rapid progress. All agreed that, as a matter of fact, the chief defect of the Articles was that the confederated Congress represented states, and because of the unanimity rule one state, even a very small one, could frustrate the will of all the others. They agreed in principle that the remedy for this infirmity was to set up ‘a national government… consisting of a supreme Legislature, Judiciary, and Executive’ which would operate directly on individuals, not just on states. It was agreed that the legislature ought to consist of two chambers; some progress was made towards settling the details of the judiciary and the executive. But it soon became clear that a fundamental problem gaped before the convention. The delegates from the large states held that, as a matter of republican principle, direct elections should be held for both legislative houses, and that representation in both should be proportioned to population, ignoring the states; while the small states, though ready to
give up the equal rights they enjoyed under the Articles, insisted on some protecting privilege under the new system. Throughout June and early July the point was debated; anxiety mounted that it might wreck the whole convention; Hamilton left in despair, and his colleagues from New York in disgust (they were committed small state men); by early July Washington was looking as grim as he had at Valley Forge;
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but eventually the large states conceded, as they had to if they wanted to make progress. It was agreed that the lower house would be elected on a population basis, though every state was to have at least one representative; while the upper house, or Senate, would be elected by the state assemblies, and each state would have an equal vote there. This was the Great Compromise; without it the Constitution would not have been agreed, and it was a price worth paying. Yet essentially it was a price paid by the future to the past. Major political conflict has never, since 1787, raged between large states as such and small states; so the Constitutional protection has been neither a help nor a hindrance. Madison foresaw this at the time; he insisted that the real disputes would in future arise between the regions, or sections – between North and South, say; but he too acquiesced in the arrangement. The essential points of the compromise were adopted on 16 July.

This matter having been settled, the convention was free to get down to the hard work of settling the details of their grand design. It was agreed, for example, that each state would have two representatives in the Senate, who would vote as individuals, not as a unitary state delegation; that the new Constitution would be the supreme law of the land; and that executive officers might be impeached for high crimes and misdemeanours. The debates were long and earnest, and not always very enlightening: during the discussion of that dangerous institution, the standing army, Gerry of Massachusetts actually proposed that the Constitution limit the size of the army to two or three thousand men. Fortunately, Washington killed the idea by muttering audibly from the chair that they should next make it unconstitutional for any enemy to attack with a larger force.
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The next important crisis arose towards the end of August. It was complicated and messy, for it involved two very different questions, trade and slavery. As to trade, one of the New England delegates remarked bitterly that ‘the Eastern states had no motive to Union but a commercial one. They were able to protect themselves. They were not afraid of external danger, and did not need the aid of the Southern States.’
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For that reason they demanded that Congress be given the power to pass a navigation law by a
simple majority. Such a law would at last enable American merchants to fight back effectively against British discrimination. Unfortunately, it might also make them masters of the South, enabling them to charge what they liked for carrying products such as rice and tobacco (soon, cotton) to market. So South Carolina, in particular, resisted the proposal, but then found herself attacked on her other flank, for the delegates from Virginia and Pennsylvania wanted to renew the wartime ban on the slave-trade, arguing that the continued importation of Africans was only storing up trouble, in the shape of a slave rebellion, for the future.

Georgia and South Carolina reacted to this with cold violence. Virginia they thought hypocritical: she wanted to ban the import of Africans only so that she could sell her own superfluous slaves at a good price. It was drummed into Pennsylvania, very firmly, that neither state would ever agree to any shackle on slavery. Left to themselves, they said, the far Southern states might possibly abolish the institution one day; but they would never do so if bullied.

It was a naked challenge, of a kind that was to become fatally familiar in the next seventy years. It would have been better for the United States if it had been taken up and disposed of in 1787, once and for all; but it was not possible. Anyway, the resistance of the middle states was overcome by New England, which agreed to support the slave-trade if the Carolinas and Georgia would abandon their proposal that a navigation Act could only be passed by a two-thirds vote of both houses of Congress. This bargain satisfied each side; and the slave states won some other guarantees, of which the most important was the provision that ‘representatives and direct Taxes shall be apportioned among the several States… according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years [that is, indentured servants], and excluding Indians not taxed, three fifths of all other persons’ – in one word, a word carefully excluded from this free Constitution, slaves.
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It is really no wonder that a nineteenth-century abolitionist called the Constitution a covenant with hell: the net effect of these various provisions was to deeply entrench slavery in the American political system. In return all that the liberals got was the provision that Congress might forbid the Atlantic slave-trade after 1808 – not before.
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All this was too much for old George Mason, who wanted to end slavery by educating the slaves, then freeing them, and giving financial compensation to the owners. There were other things he objected to about the Constitution as it emerged: it did not include a bill of rights to protect citizens and states against encroachments by the national government (he had drawn up such a document for the state of Virginia, and it had been widely admired and copied) and he had doubts about some of its lesser provisions. But by the
beginning of September the convention was too weary to listen to him. Its work was almost complete, an overwhelming majority of members supporting its plan; they wanted to go home, let Mason snort as much as he chose about their precipitate, intemperate, not to say indecent haste. The committee of style, led by Gouverneur Morris, cast the agreed points into plain yet elegant language; on 15 September the eleven remaining state delegations unanimously agreed
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on the Constitution as amended; and on the 17th they signed the official parchment version.

It was a great occasion. Benjamin Franklin opened it with his last public speech, an exceedingly wise one, read for him by James Wilson, in which he pleaded for his colleagues to swallow their rancour and their vanity and accept the Constitution as the best that could be devised, in which spirit he accepted it himself. His plea fell on deaf ears, so far as Mason, Randolph and Gerry were concerned: they refused to sign; but everybody else did so, and as the last members were signing,

Doctor Franklin looking towards the President’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: but now at length I have the happiness to know that it is a rising and not a setting sun.

Madison, who tells this story, must have heartily agreed with him, for the Constitution that emerged, which greatly strengthened the national government while protecting the rights of the states and the individual citizens, was pretty much what he had worked for for five years; but he also knew that the battle to make the sun rise was still not over. To come into operation the Constitution would have to be approved by at least nine states; everybody knew that Rhode Island would continue to hold aloof; it would be a stiff battle to make sure that no more than three other states joined her. Special conventions were to meet; after a farewell dinner at the City Tavern in Philadelphia the delegates fanned out across America to persuade their constituents that what they had done was necessary and right. Already the enemy was at work: Luther Martin had gone off in a huff early in September, like Yates and Lansing of New York earlier;
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and now the anti-Federalists, those who had never liked the convention, would work up a huge clamour of opposition.

The pen was a weapon. Washington seems to have thought that his name
on the Constitution was publication enough (at any rate he was much distressed when an informal but sincere paragraph of endorsement from one of his private letters was printed); but he filled his enormous correspondence with praise of the Constitution and remarks on the progress of ratification. Franklin made sure that his last speech was widely available. Dickinson wrote a series of pamphlets as ‘Fabius’. But the younger men bore the heat of the battle. Federalists and anti-Federalists (that is, pro-Constitutionalists and opponents) rushed into print, as if the great days of 1775 and 1776 were back. Some used their own names, some, pseudonyms: ‘Cato’, ‘Centinel’, ‘Landholder’, ‘Roderick Razor’, ‘Constant Reader’, ‘Rough Hewer’. From the heap of ephemera one publication shines out:
The Federalist Papers
, by ‘Publius’, published in New York state between October 1787 and August the following year. ‘Publius’ was really Hamilton, Madison and (for five of the papers) John Jay, the Confederation’s Foreign Secretary. Its importance to posterity, as an authoritative interpretation of the intentions and meaning of the framers of the Constitution and as the one classic of political thought so far produced in North America, overshadows its usefulness in the battle for ratification, which may not have been very great. At least the papers were quickly republished in book form and used as sources of Federalist ammunition in the ratifying conventions of Virginia and New York; while if they did no more than clarify the authors’ thoughts they were a worthwhile enterprise, for it was by virtue of sheer intellectual superiority that Hamilton and Madison were to steer their home states to ratification. However, it seems likely that the irresistible logic and good manners of ‘Publius’ influenced more people than can be proved; certainly he was a classic by the autumn of 1788, and praised as such by Washington and Jefferson (who were both let into the secret of the authorship).

All the same, it would be words spoken rather than written that most affected the outcome. In this respect James Wilson was first to the fray. Sure of their ascendancy, the Federalists of Pennsylvania hurried their state into ratification, in a manner which caused a lot of ill-feeling: Wilson was beaten up by an angry Western mob just after Christmas, 1787. But before then he had argued before both the legislature and the state convention with such success that Pennsylvania was the second state to ratify (by forty-six votes to twenty-three in the state convention) – on 12 December. Delaware was the first, doing it unanimously on 7 December.

Next came New Jersey, Georgia (‘If a weak state, with the Indians on its back and the Spaniards on its flank, does not see the necessity of a general government, there must I think be wickedness or insanity in the way,’ General Washington had remarked) and Connecticut. The small states were making no difficulties: they well understood the value to them of the Great Compromise. For that very reason it was uncertain what the big states would do; yet without them the whole experiment would fail. Massachusetts deliberated throughout most of January and the first week of February 1788. Her delegates began as mostly anti-Federalists; but the men of the Bay State
had had a sounder political training than those of any other: they knew good arguments when they met them; and besides, Sam Adams changed his tune. He had disliked the convention and, at first glance, its handiwork. ‘I stumble at the threshold,’ said he. ‘I meet with a National Government instead of a Federal Union of sovereign States.’ But the sweet reasonableness that, except in Pennsylvania, marked the Federalists’ tactics everywhere won him over; and he then made it his business to win over the Governor, John Hancock, who meant to remain ill in bed with gout until it was clear which way the wind was blowing. A little flattery, a little reason, the alluring idea that, if Virginia failed to ratify, he might be the first President of the United States, and the trick was done: still flaunting his bandages, Hancock went down to the state convention, threw his weight behind the Federalists, and Massachusetts ratified; holding, in the words of one of her ‘plough jogging’ delegates, that ‘there is a time to sow and a time to reap. We sowed our seed when we sent men to the Federal Convention. Now is the harvest.’