Module 03 Sections
The Constitutional Convention
Following Congress’s approval of a convention to address the defects of the Articles of Confederation at the Annapolis Convention of 1786, a new convention was convened in Philadelphia in the summer of 1787. This would become known as the Constitutional Convention.
On May 25, 1787, members of various state delegations met in Philadelphia to revise the Articles in order to overcome the defects that had led to Shays’ Rebellion in Massachusetts and threatened to bring disorder to the other states for similar reasons. This mandate was quickly abandoned, however, as the delegates decided to set aside their mission and start from scratch.
An overview: 55 men served at the Convention at one time or another. They came from every state except Rhode Island. The New Hampshire delegation showed up late, and 2 of 3 from the New York delegation left early because they thought the Convention was overstepping its mandate. Hamilton remained, but New York was without an official vote. 39 delegates ultimately signed the document. Of this number, 8 had also signed the Declaration. There were three present at the end who did not sign (Elbridge Gerry, Edmund Randolph, and George Mason). Many had served in Congress, and 1/3 had served in the Revolutionary War. Ben Franklin and George Washington, the most famous Americans of the day, were there, although they had little impact on the substance of the debate. Washington said nothing until the last day. As far as impact at the Convention is concerned, Madison, Gouverneur Morris, and James Wilson were the most important figures. Some famous Americans not present: Jefferson (Paris), John Adams (England), Samuel Adams (illness), and Patrick Henry (smelled a rat).
The rules were agreed upon on the first day, and called for secrecy and voting by state. Secrecy provided insulation from public opinion and public pressure. The Convention journal was not published until 1817, and Madison’s notes, the most complete account of the Convention, did not surface until 1840. With surprisingly little debate, the Convention voted to abandon the Articles of Confederation in favor of a completely new approach to republican government.
Did the Convention overstep its authority right from the first? The Constitution was not a revision of the Articles in any real sense, but revision of the Articles required unanimous consent. Given that Rhode Island did not even send delegates, there was a deep legal problem with the entire affair. Making matters worse, only 9 states initially approved the Constitution, and the state legislatures were not involved in the ratification process. On the other hand, Convention delegates argued that the Articles were so deficient that it would be impossible for the Convention to meet its obligation of revising them. They simply declared the Articles null and void.
The upshot of this is that the men of the Convention were not sticklers for legal authority; they claimed a deeper responsibility and acted in the way they thought best to achieve the stated ends of the Convention (establishing effective governance) through different means (an entirely new Constitution).
Plans, Large and Small
The stakes were high at the Convention. The United States already had a failed constitution in the Articles, and it was not clear that there would be anything beyond one more chance at settling federal governance in the young nation. The stakes were not only high in this way. As soon as the delegates voted to scrap the Articles, debates over how the new constitution would operate broke out immediately. These centered around the various interests of different kinds of states, most significantly large and small. The Articles had, after all, treated each state the same regardless of size. The net effect of this arrangement was that the smaller states exercised a disproportionate amount of influence.
The large states were determined not to let that happen again. This argument played out in terms of what the legislative body would come to look like under the new constitution.
The Large State Plan: The Virginia Resolutions
The Virginia Resolutions were proposed on May 29, 1787 by Edmund Randolph. The most important elements of the resolutions called for a bicameral legislature in which states would be represented in each house according to the size of their population. This would have yielded thoroughly proportional representation across the states, and would have resulted in a system in which states would matter less as such. This plan would have changed the nature of representation in the United States quite radically to the benefit of the larger states.
You can read the Virginia Resolves here:
The Small State Plan: The New Jersey Proposals
The New Jersey Proposals were offered on June 16, 1787 by William Paterson. Paterson took issue with the Virginia Plan, and by extension, with the activities of the Convention itself. He stressed the need to follow the mandate of the Convention, which was to revise the Articles of Confederation simply. He clearly understood states to be sovereign, and as such proposed equal representation of states, which was the basis of representation in the Articles. Anything else, he opined, was beyond the purview of the Convention. His plan would have benefitted the smaller states, just as they had benefitted under the Articles.
You can read Paterson’s argument here:
The Virginia Plan dominated the debate from the time it was introduced. The New Jersey Plan never received sufficient support to supplant it.
Be that as it may, some of what Paterson urged did find its way into the finished Constitution in the form of the Great Compromise, which was proposed by Roger Sherman of Connecticut.
The Great Compromise
The Constitution enshrined neither the Virginia nor the New Jersey plans. Instead, in the Great, or Connecticut Compromise, elements from each were adopted for inclusion. The large states got some of what they wanted in the form of the House of Representatives, which is filled according to population. Large states are thus better represented than small states in the lower house. The Senate, on the other hand, was designed to benefit the smaller states. In the upper house, each state is given two Senators, regardless of size. The two legislative chambers, based on two very different representational models, must come to agreement before any legislation can be passed. The details of this will become more clear in the congressional section.
Given this backstory, have a look at the Constitution now, paying special attention to Articles I-III, which define the legislative, executive, and judicial branches respectively.
The writing of the new Constitution at the Philadelphia Convention was just the first step, of course. After all, the new Constitution still needed to be ratified by the states, and that was anything but assured.
New York was a pivotal state in all of this. Remember that 2/3 of the New York delegation left before the Convention even ended, leaving Alexander Hamilton as its sole representative. There was considerable concern that New York would reject the plan, thereby setting the stage for other states to do the same.
In order to prevent this eventuality, Hamilton, James Madison, and John Jay took to writing a series of newspaper articles in New York in 1787 to make the case in favor of adoption.
The Federalist: An Outline
I. #s 1-36 Discussion of Union, the matter of a new nation.
2-14 Utility or Necessity of Union.
15-22 Insufficiency of the Articles of Confederation to preserve the Union.
23-36 Necessity of government at least as energetic as the one proposed.
II. #s 37-85 Merits of the proposed Constitution.
37-38 Introductory reflections.
39-40 General form of the proposed government.
41-46 Sum of power in the new government.
47-84 Particular structure of the new government.
47-51 Separation of Powers.
52-58 House of Representatives.
59-61 Regulation of Elections.
84 Misc. Objections
The Federalist: General Comments and Observations.
All three of the authors of The Federalist were very well respected men within the colonies in the late 18th century. It seems that their fame might have gone a long way toward fostering public approval of the proposed Constitution. Still, they chose to publish under a single pseudonym. One reason was undoubtedly their desire to have attention placed squarely on the arguments rather than their personal positions. Important, too, is their choice of the name Publius. This was a reference to Publius Valerius Publicola, who was described by Plutarch as a great man who saved the Roman Republic through personal sacrifice. He could have ruled as a king, but instead chose to return to the republican roots of Rome.
The authors, through their use of this name, clearly wanted to be considered as a single entity rather than as three separate people. They were unquestionably working toward the same end.
As the outline above shows, there was a rational coherence to the presentation of The Federalist. It was written in two main sections, and each of these sections was published in book form and disseminated in the period before the state ratifying conventions.
Two men, Hamilton and Madison, turned out 71 of the essays, Numbers 6-77, at the rate of three or four a week. This amounts to an effort of roughly 1000 words a day. This remarkable output served to overwhelm the opposition to the Constitution in a torrent of words and arguments. This might lead us to look at The Federalist as a remarkable work of journalism and little else, but that would be to ignore the words of Hamilton in the all but forgotten introduction, which asserted that the articles were a theoretical work serving “the cause of truth.” Jefferson, an occasional opponent to Federalist aims and the object of some criticism within the pages of The Federalist itself, was later to refer to the work as “the best commentary on the principles of government which has ever been written.”
With all of this said, though, it is important to remember that The Federalist was, in addition to whatever else it was, an example of political propaganda. It is propaganda of the highest rank to be sure, but it is propaganda nonetheless. These were articles dedicated to the purpose of swaying public opinion in favor of a controversial plan, and as such, they tend to present the proposed Constitution in a tremendously favorable light. Predictably, they also present opposing plans and objections to the new Constitution in very unfavorable terms. In short, the articles which comprise The Federalist put forth a very robust argument in favor of a proposed plan of action. You should read the words Publius wrote with great care, and you should ask yourself at every turn what he has not said. It is often the case that the most important parts of an argument are the parts that have been omitted.
As the outline above indicates, the first portion of The Federalist is dedicated to examining the need for union in broad terms. The governing institutions are not addressed until the second portion. In this first section, one of the first themes that emerges is that of the proposed Constitution as a bulwark against domestic faction and insurrection. This was an issue, of course, given the reality of Shays’ Rebellion, which was in no small part responsible for getting people to think seriously about the need for a new constitution in the first instance.
Federalist 9 introduces the topic by referring to the “petty republics of Greece and Italy,” and their propensity to vibrate “between the extremes of tyranny and anarchy.” Clearly Publius aims to heighten the fears of his readers by drawing their attention to periods of tumult experienced by other republics throughout history.
As you read this number you will see the name Montesquieu appear. Montesquieu was a French philosopher who was very influential to the Founding generation. One of his central tenets was that republics had to be small in size. In his seminal work, The Spirit of the Laws, he wrote:
In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and, of course, are less protected.
As one of the most influential philosophers in the United States at the time, Montesquieu presented Publius with some problems. The United States was already a huge republic by any estimation, and it was growing quickly. Hamilton, Madison, and Jay would have to turn the conventional wisdom on its head, and make the argument that only a large republic could control the mischiefs of faction. They began doing this in earnest in Federalist 9, which you can read here:
The most important part of this number is the following:
To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.
Only by enlarging the orbit, or making the republic a large one, can the difficulties of self-government be overcome. It is with this thought in mind that Publius turns to a protracted discussion of faction in Federalist 10.
Federalist 10 is widely held to be a high water mark in American political thought, and this number gets to the heart of why the Framers gave us both a republic instead of a democracy, and a large republic instead of a small one. Following the analysis Publius offered in Federalist 9, we here find him presenting the greatest threat to self-governance: faction.
What is a faction? Publius defines the term clearly when he writes:
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
The first thing to realize is that factions, in Madisonian terms, are always destructive. There is simply no such thing as a good faction. Factions are destructive either to the rights of some, to the interests of the community, or both. Further, a faction can represent a majority or a minority of the citizenry. Less obviously, factions are animated by passions, which are always a negative thing for Publius in The Federalist. Passions are opposed to reason, and reason must rule. But how can that be made to happen?
Publius does not place his faith in good politicians in this consideration. He writes:
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
And if enlightened statesmen cannot be relied upon, what can? The answer that emerges over the course of The Federalist is that institutional arrangements can go a long way toward ameliorating the ill effects of faction, but the answer goes much deeper than that.
According to Publius, minority faction is addressed by voting. The smaller a faction is, the less likely it will be able to carry its schemes to fruition. And in a large republic, with a multiplicity of interests, most factions will be minority factions by definition. The real problem, of course, is majority faction. Here, there are only two options: We can either prevent them from coming into being, or second, we can institute a system which renders them incapable of fulfilling their desires.
A democracy, says Publius, offers no such ability to address majority faction. The majority, after all, gets its way in a democratic system. So too, he opines, does a large republic have an advantage over a small one. What is necessary, according to Publius, is a system which filters factions without undermining the ability of the people to rule in their own name. This is a delicate balance to strike without question, but virtually everything that follows in terms of the design of the United States government was meant, ultimately, to address this problem, because faction is the problem of self-government.
You can read Federalist 10 here:
The Constitution that emerged from the Convention of 1787 was a grand experiment in self-governance, the greatest such experiment in mankind’s history. Can a people govern themselves in their own names, or will that project inevitably become one defined by governing elites simply telling everyone else how to live? Even now, nearly 250 years later, the American experiment is ongoing.
Take a look at this video to get a sense of the scope of the issue as it stands before the nation at present:
- “Enlargement of the Orbit”