The Genius of America (9 page)

And that is exactly what happened, although it took until deep into summer.

After the delegates had spent weeks considering other provisions of the Virginia Plan, they returned to the question of proportional representation. Now the two June 11 votes of the Committee of the Whole House were before the convention. The first, proportional representation in the House of Representatives, was adopted by a 6–4 vote, with one state, Maryland, divided and New Hampshire's delegates absent from the convention. Then on the second question, proportional representation in the Senate, Sherman's Connecticut colleague Ellsworth reoffered the compromise, that the rule of suffrage in the Senate be equal votes for each state. “We were partly national, partially federal. The proportional representation in the first branch was conformable to the national principle and would secure the large states against the small. An equality of voices was conformable to the federal principle and was necessary to secure the Small States against the large.”

On July 2 the convention voted. From the 6–5 vote in June for proportional representation in the Senate, the delegates now shifted to a 5–5 vote for one state, one vote. The convention was deadlocked. “We are now at a full stop,” and nobody thinks “that we should break up without doing something,” Sherman observed. The convention responded by resorting to a time-honored legislative tradition. It sent the issue to committee, a committee composed of one member from each state “to take into consideration both branches of the legislature.”

The committee reported to the convention on July 5 “that in the second Branch of the Legislature each State shall have an equal Vote.” Perhaps as a sweetener to the larger states, the committee also recommended that revenue bills must start in the House of Representatives. On July 16, after much wrangling on other parts of the committee's report, which required again another committee to review, the convention voted in favor of what effectively was Sherman's original proposal, now called the Great Compromise, or the Connecticut Compromise.

The Great Compromise, which would save the convention, finally passed by only a 5–4 vote. Massachusetts divided. The five supporting states were Connecticut, Delaware, New Jersey, Maryland and North Carolina. Georgia, which had divided in the past, opposed the measure, even though it was among the smallest states. New York's delegates were absent. Two, Robert Yates and John Lansing, who had always supported the small states because they wanted to limit federal power, were gone, leaving in protest over the direction in which the convention was heading. Hamilton would return. New Hampshire's delegates had still not arrived.

Many important big-state delegates took their defeat badly, at first. Randolph claimed that “the vote of this morning (involving an equality of suffrage in 2d. Branch) had embarrassed the business extremely.” The session then adjourned to allow the larger states, in Randolph's words, to “take such measures . . . as might be necessary.”

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The next day, the seventeenth, Madison reported that delegates from the larger states, along with some fewer members of the smaller states, gathered informally before the actual meeting to once again discuss the proportional representation vote. Some of the larger states remained extremely upset, claiming that “no good government could or would be built on that foundation.” But their time had passed. “Others,” according to Madison, “seemed inclined to yield to the smaller States, and to concur in such an Act however imperfect and exceptionable, as might be agreed by the Convention as a body . . . It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a Union of the larger, in any plan whatever against the equality of votes in the 2d. branch.”

The message was simple. A solution viewed as perfect by every delegate was not possible. Either there would be compromise, or there would be no country. The topic had been fought over exhaustively. The big states had lost, and that decision should be respected.

In fact, it was. The subject was not discussed again through the end of the convention. Later, Madison, being the consummate politician, embraced the decision he had fought fiercely against. Division of power between state and federal governments, he said, was “double security” for “the rights of the people.”

With the resolution of the upper-house question, the convention was able to resume deliberation on the remaining resolutions of the Virginia Plan. Compared to the battle over the upper house, the rest of the convention must have seemed quite calm. But there was a continuing argument that shed light on the nature of the system they were building, and which resulted in another memorable compromise that we live with to this day. This debate was on how to elect the chief executive.

“This subject,” according to James Wilson of Pennsylvania, was “the most difficult of all on which we have had to decide.” Underlying this struggle was a widely shared view that a critical role for the new executive was to check the legislature. “One great object of the Executive is to controul the Legislature,” proclaimed Gouverneur Morris of Pennsylvania on July 19. Most of the delegates were in accord. Legislative tyranny was as great or greater a threat to liberty as was executive tyranny. For most of them, this was the lesson drawn from the years since independence. Madison, like many others, foresaw the reintroduction of monarchy as a real possibility if the federal legislature became, as he described on July 17, “omnipotent” like state legislatures (which, for the most part, would all provide for strong executives in ensuing years). “If no effectual check be devised for restraining the instability and encroachments of the latter [the legislature], a revolution of some kind or other would be inevitable.” Some delegates may have actually supported such a restoration. James McHenry of Maryland reported that on August 6 he witnessed his Maryland colleague John Mercer create a list of delegates “with for and against marked opposite most of them.” McHenry questioned Mercer about the list, and Mercer told him “laughingly that it was no question but that those marked with a ‘for' were for a king.” Was he joking? The historian Max Farrand posits that with so many problems attending the election of the president, some of the delegates “may have been circulating rumors of establishing a monarch in order to try out public opinion.”

Despite Madison's desire to keep restraints on the legislature, under the Virginia Plan the executive was to be elected by the legislature. The legislature's power over the executive would then be limited by limiting the executive to one term. “If he ought to be independent,” Randolph argued on July 19, “he should not be left under a temptation to court a re-appointment. If he should be reappointable by the Legislature, he will be no check on it.”

But why did Madison, that savvy thinker and operative, propose this dependence in the first place? Why grant to the new legislature the power to elect the executive if the executive was needed to check the legislature? The answer was straightforward. Madison and his supporters of the plan doubted the capacity of the public to make such an important choice directly. “The sense of the Nation would be better expressed by the Legislature, than by the people at large,” who “will never be sufficiently informed of characters,” Sherman proclaimed on July 17. “It would be as unnatural to refer the choice of a proper character for chief Magistrate to the people,” George Mason argued, “as it would, to refer a trial of colours to a blind man.”

But many delegates were more forward looking, more democratic if you like. Gouverneur Morris thought the legislative election of the executive would be “the work of intrigue, of cabal and of faction.” And limiting the executives to one term was no solution, said Rufus King of Massachusetts on July 19, because “he who has proved himself to be the most fit for an Office, ought not to be excluded by the constitution for holding it.” Perhaps ironically given the widely shared skeptical view of human nature, many delegates agreed with King's support for an executive elected directly or indirectly by the people. The people, according to Gouverneur Morris, “will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.”

Back and forth they went on this topic from July 17 onward. Numerous ideas were explored: election by the national legislature, by state legislatures, by governors, by electors, by the people directly and, ultimately, by combinations of those. “In every Stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. Nor have any of the modes of constituting that department been satisfactory,” reported Mason on July 26.

Finally, in late August, this matter was taken up by the Committee of Eleven, whose job it was to report on things “postponed” or “not acted upon.” That committee, comprising one delegate from each state present (New York's delegates were still absent, and Rhode Island was not in attendance), included important delegates on various sides of the issue, such as Madison, Sherman, Morris, Dickinson and King. On September 4, these delegates made a surprising proposal that would become the basis of the convention's final compromise. Each state was to appoint electors equal in number to their number of senators and representatives. The electors were to meet in their own state and select their nominees. Thus, from a summer-long debate over how to pick a president, the electoral college was born.

When asked by Randolph and Pinkney to explain the reasons for changing the mode of electing the executive, Gouverneur Morris, a member of the Committe of Eleven, sent a list. The first was “the danger of intrigue & faction if the appointment should be made by the Legislature,” Morris told them. Another was that many delegates “were anxious” about “an immediate choice by the people.” A third was “the indispensable necessity of making the Executive independent of the legislature.”

If a camel is a horse designed by committee, the electoral college is the camel of American government. However anachronistic it may seem to us today, the electoral college still serves one role: It is like a bronze monument to the spirit of compromise that suffused the Constitutional Convention of 1787. This proposal was clearly an attempt to draw something from each of the many proposals the convention had been considering in order to arrive at not necessarily the best plan, but the best achievable plan.

Indeed, that notion of the best achievable plan became a kind of informal motto for the convention. On September 17, after numerous sessions, a multitude of proposals and many difficult compromises over hard, substantive issues, the convention agreed to a new Constitution. It was unanimously adopted by the twelve states. Not every delegate agreed, but a majority of every delegation did. Only Hamilton, who had returned, was present for New York, so his vote alone put New York into the yes column. Neither Randolph of Virginia, who introduced the Virginia Plan, nor his colleague Mason were willing to support the final product, although Randolph would come around and support its approval at the Virginia ratification convention.

Madison recorded the final day as he had virtually every day.

Monday Sepr. 17. 1787. In Convention
The engrossed Constitution being read,
Doctor Franklin rose with a speech in his hand, which he had reduced to writing for his own conveniency, and which Mr. Wilson read.

In 1787, Benjamin Franklin was eighty-one, the convention's oldest delegate and probably the country's most famous person. He was now too frail and ill (with gout and stones) to transport himself to the state house or to speak before the convention, so he was carried there in a sedan chair by four prisoners from the local jail and his speeches were read by his fellow Pennsylvania delegate, the influential James Wilson, like Franklin a signer of the Declaration of Independence. Wilson read Franklin's memorable words.

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects . . .
   In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us . . . I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does.

Franklin's view was as close as we have to a perfect summary of the spirit of the moment among many of the framers. Washington, for example, wrote to the Marquis de Lafayette, “It appears to me, then, little short of a miracle, that the Delegates from so many different States (which States you know are also different from each other in their manners, circumstances and prejudices) should unite in forming a system of national Government, so little liable to well founded objections.”

Of course, the framers had an extraordinary amount about which to be proud. They had established an entirely new form of government based on new theories of government. They had, they thought, saved their country from chaos or tyranny.

They had developed a far more mature notion of public virtue, one which denied the possibility of—and, more important, eliminated the need for—perfection in human political behavior. In its place through representation and separation of powers, the framers substituted struggle among competing ideas, interests and egos. They no longer pretended they could fix human nature, so they harnessed it. Under this scheme the process would replace the product as the test of lawmaking legitimacy. “The founding fathers . . . saw conflict as the guarantee of freedom . . . The Constitution thus institutionalized conflict in the very heart of the American polity.”