The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

Compromise and Consensus

With astonishing speed the Committee on Detail, headed by James Wilson, and the Committee on Style, headed by Gouverneur Morris, succeeded in putting together what we now know as the seven articles of the original Constitution of the United States. Wilson’s committee arrived at acceptable agreements concerning the election of the executive (the President), the length of his term, impeachment, appointment of Federal judges and the jurisdiction of the Supreme Court, terms and functions of United States senators, and means of ratifying the proposed constitution.

Some subjects roused serious debate, particularly the matter of slavery, which greatly complicated questions concerning the basis of direct taxation and of representation. The system of requisitions—State contributions to the Federal treasury upon request—that prevailed under the Confederation might be continued, but how should those requisitions be allocated among the States? Oddly, there was no distinct recognition that the normal basis of representation ought to be persons, and that the normal basis of taxation ought to be wealth. It was finally decided, however, that both representatives and direct taxes should be apportioned among the several States according to population. The larger the population the greater the number of representatives. As a concession to the southern States, the population to be counted included three-fifths of the slave population, even though slaves were not entitled to vote.

The inclusion of three-fifths of the slaves constituted the so-called “Three-Fifths Compromise.” There was some objection to it in the Convention, but the issue was not vigorously challenged there or in the State ratifying conventions. This adjustment, in fact, had already been suggested in the Confederation Congress, and it was not altogether strange or novel to the delegates.

Although the question of slavery would later bring about disunion and civil war, in 1787 it was overshadowed by other considerations. Of paramount concern to the delegates was the desperate need to reach a compromise on a great variety of issues and to develop a consensus sufficient to persuade the delegates and the State ratifying conventions to endorse the final draft of the Constitution. Far more troublesome than slavery was the jealousy between the large States and the small States—a jealousy that reached back to the Revolutionary War period and that, had it been aroused by a prohibition against slavery, would probably have made Union impossible.

This jealousy was based not on differences between free States and slave States, as would later be the case, but upon political, cultural, and economic factors. Among the delegates, there were slaveholders from the North as well as the South. We noted earlier, in fact, that nearly all of the States in 1787 had slaves, and that the opponents of slavery were not confined to any particular State. Some of the New England delegates—Rufus King of Massachusetts, in particular—objected to having the Constitution recognize slavery, but no less an opponent of this practice was George Mason of Virginia.

On the other hand, some of the delegates from the lower South—the Carolinas and Georgia—thought slavery was economically necessary. The people of those States looked forward to expanding into the western lands that now form Alabama, Mississippi, and Tennessee. They believed that only by employing slave labor could they carry on their rural plantation economy.

General Charles Cotesworth Pinckney, speaking for those three southern States, feared that Congress, under the new Constitution, could forbid the importation of slaves into the United States—as, indeed, King, Mason, and other delegates wished to do as soon as possible. Pinckney and his colleagues therefore warned that these States might refuse to join the Union if some protections of their economic interests were not included in the Constitution. One of the most passionate debates of the Convention was brought on by this conflict of convictions. The matter was finally settled by a compromise that was arranged in part by Oliver Ellsworth of Connecticut.

The antislavery delegates reluctantly agreed to a constitutional provision that would forbid Congress from interfering with the importation of slaves until the year 1808, and would permit a Federal tax on such importation of not more than ten dollars per slave. This compromise became part of Section 9 of Article I of the Constitution. Significantly, the exemption from Federal interference was limited to “the States now existing” and did not apply to territories or new States entering the Union. General Pinckney recognized that he could not obtain any better concession from the Convention but he had secured some time for the planters of North Carolina, South Carolina, and Georgia to adjust to the new restriction. As for the domestic slave trade, the new Constitution provided merely (Article IV, Section 2) that slaves who might escape from one State into another must be returned to their owners.

If it was possible to compromise on the slave trade, it was clearly possible to compromise on other questions. By September 17, 1787, therefore, the delegates were ready to publicize the Constitution they had written. Only thirty-nine of the original fifty-five delegates put their signatures to the document because several had gone home, including some in dissent. Three gentlemen who were present declined, for various reasons, to sign the Constitution. They were George Mason and Edmund Randolph of Virginia, and Elbridge Gerry of Massachusetts.

No signer of the Constitution considered the document to be perfect, but all were ready to explain it to citizens of the republic. In its final form, the Constitution gave far less power to the Federal government than James Madison had intended by his Virginia Plan. Indeed, the document that was presented for ratification followed moderate lines approved by that wise old man John Dickinson, even though Dickinson had not presented the Convention with a separate plan of his own.

As one looks back on these proceedings two hundred years later, it is easy to understand why historians have often referred to the Constitutional Convention as “the Miracle of Philadelphia.” It seems incredible nowadays that such an event could actually occur, and even then it was viewed by the American people and foreign observers as an extraordinary affair. Here were fifty-five individuals, all prominent leaders of their States, many traveling long distances under primitive means of transportation, gathered in one room for four months to forge a new system of government such as the world had never seen. At considerable personal sacrifice—and many had already suffered severe losses during the Revolution—they were away from their homes, their families, their businesses, and their farms for an entire summer. A deep sense of civic pride and virtue, and a feeling of moral responsibility for the welfare of the American people and future generations, explain only in part what motivated these gentlemen. They were also driven by a profound intellectual and emotional attachment to individual liberty. What is truly remarkable is that they all realized at the time the historic significance of what they were seeking to accomplish. For never in recorded history had a society had the opportunity, under the direction of its natural leaders and best minds, to deliberate at such length on the best form of government, to write a fundamental law for a whole nation, and to establish a constitutional republic for liberty, order, and justice.

In Philadelphia, the American people said their final good-bye to the baleful influences of arbitrary and unrestricted government, feudalism, class privilege, and other stultifying and corrupting Old World influences. The great German thinker and poet Johann Wolfgang von Goethe spoke for many European onlookers when he congratulated the Americans on escaping the “ghosts” that had haunted Europe. The Framers had written not only a new Constitution but a new chapter in the history of mankind. The world would never be the same.

SUGGESTED READING

• Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little, Brown & Co., 1966).
• M. E. Bradford, Founding Fathers: Brief Lives of the Framers of the United States Constitution (Lawrence: University Press of Kansas, 1994).
• Trevor Colbourn, ed., Fame and the Founding Fathers. Essays by Douglas Adair (Indianapolis: Liberty Fund, 1998).
• Wesley Frank Craven, The Legend of the Founding Fathers (New York: New York University Press, 1956).
• Max Farrand, The Framing of the Constitution of the United States (New Haven: Yale University Press, 1913).
• Max Farrand, ed., Records of the Federal Convention. 4 vols. (New Haven: Yale University Press, 1937), and James H. Hutson, ed., Supplement to the Records of the Federal Convention (New Haven: Yale University Press, 1987).
• Robert G. Ferris, Signers of the Constitution (Washington, D.C.: United States Department of the Interior, 1976).
• James McClellan and M. E. Bradford, eds., Jonathan Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. II. The Federal Convention of 1787 (Richmond: James River Press, 1991).
• James McClellan and M. E. Bradford, eds., Jonathan Elliot’s Debates in the Several State Conventions … Vol. III. Debates in the Federal Convention of 1787 as Reported by James Madison (Richmond: James River Press, 1989).
• William M. Meigs, The Growth of the Constitution in the Federal Convention of 1787 (Philadelphia: J. B. Lippincott Co., 1900).
• Clinton Rossiter, 1787: The Grand Convention (New York: W. W. Norton, 1966).
• Jeffrey St. John, Constitutional Journal: A Correspondent’s Report from the Convention of 1787 (Ottawa, Ill.: Jameson Books, 1987).
• David G. Smith, The Convention and the Constitution (New York: St. Martin’s Press, 1965).
• Carl Van Doren, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of the United States (New York: Viking Press, 1948).
• Charles Warren, The Making of the Constitution (Boston: Little, Brown and Co., 1928).