Drafting the Constitution

A combination of factors underscored the need for a stronger national government than the Articles of Confederation provided. American manufacturing was stunted because Congress had no power to impose high tariffs to protect domestic industry from foreign competition. Settlers in the west demanded a more aggressive policy on land cessions and that more be done to protect them from Indian attacks. Merchants were looking for a government that could negotiate favorable international trade agreements. While modifying the Articles was not considered particularly urgent among the southern and mid‐Atlantic states, even their leaders appreciated that free navigation of the Mississippi River and a resolution of the dispute with Spain required a response from a stronger government.

The Constitutional Convention. In May 1787, fifty‐five delegates from twelve of the thirteen states (Rhode Island did not attend) met in Philadelphia. Among them were George Washington (chosen as the chair), Benjamin Franklin, James Madison, and Alexander Hamilton. As a group, the delegates were men in their thirties and forties, many were lawyers, and most had served in Congress. Although the stated purpose of the Convention was to “revise” the Articles of Confederation, the participants quickly moved to develop a new structure of government.

The Virginia and New Jersey plans. The early constitutional debates focused on a proposal submitted by James Madison that became known as the Virginia plan, or “ large‐state” plan. It called for a bicameral legislature empowered to make laws and levy taxes with the representation in both houses based on population. Members of the lower house would be elected by voters in each state, and members of the upper house would be chosen by the lower house from candidates nominated by the state legislatures. The plan had no provision for electing an executive; the president would be chosen by the national legislature to serve for one term and was responsible for executing all laws. The legislature would also appoint judges to one or more supreme courts and lower national courts.

Opposition to Madison's proposal developed immediately. William Paterson of New Jersey, noting that the large‐state plan would give considerable power to states like Virginia and New York, offered a less radical departure from the Articles of Confederation. The New Jersey plan, or “ small‐state” plan, kept the one‐house legislature of the Confederation Congress but expanded its powers to include raising revenue and regulating commerce. The members were chosen by the state legislatures and each state was given one vote. A multi‐person executive elected by the legislature was proposed. The executives, who were removable by action of the majority of the governors, also appointed judges to a supreme court. Laws passed by the legislature were binding on the states, and the multiperson executive was authorized to compel obedience to the law.

The Great Compromise. The New Jersey Plan was rejected, but the apportionment of representation in Congress continued to divide the Constitutional Convention. The large states wanted proportional representation (based on population), and the small states demanded equal representation (one state, one vote). The solution to the dilemma came through the Great Compromise (also known as the Connecticut Compromise), which made the number of seats in the House of Representatives proportional to each state's population and each representative elected directly by the people. In the Senate, each state would have two independently voting senators to be chosen by the state legislatures.

Slavery and the presidency. The issue of whether or how to count slaves in each state's population was resolved by a formula used by the Confederation Congress in 1783. For purposes of representation in the House and assessing direct taxes to the states, population was determined by the “whole number of free persons” and “three fifths of all other persons.” The phrase “all other persons” meant slaves. In addition to the Three‐Fifths Compromise, the delegates allowed the slave trade to continue, by denying Congress the power to prohibit it before 1808, and agreed that fugitive slaves should be returned to their masters.

The Convention accepted a one‐person executive but hotly debated how the president should be elected—by Congress or by the people. Election of the executive was resolved through the invention of the Electoral College. The state legislatures would choose the same number of electors as their total number of representatives in Congress, and the electors would vote for two presidential candidates. The candidate who received the most votes would become president and the person with the next highest total would become vice president. In the event of a tie, the election would be decided by the House of Representatives, each state having one vote in this situation.

Other mechanisms of the new government were hammered out during the Convention. The Constitution provides for the separation of powers, meaning that governmental functions are in the hands of the executive, legislative, and judicial branches, and that a system of checks and balances ensures that one branch does not dominate the others. For example, the president can veto laws passed by Congress, but Congress can override the veto by a two‐thirds vote. Foreign policy is in the hands of the president, but the Senate must approve all treaties.

Ratifying the Constitution. A minimum of nine states was needed to ratify the Constitution. In the months after the Convention finished its work (September 1787), the debate over ratification raged in newspapers, in pamphlets, and on the floors of state legislatures. To educate voters and stimulate public discussion, Alexander Hamilton, James Madison, and John Jay wrote a series of essays supporting the strong government provided for in the Constitution, which were published in papers across the country. The articles are collectively known as the Federalist Papers, and those who favored ratification of the new constitution called themselves Federalists. Their opponents went by the rather awkward name of Antifederalists, believing that the new document gave too much power to the national government and left the states too little. Staunch proponents of individual liberty, they strongly attacked the omission of a bill of rights, already included in many state constitutions.

On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution. Virginia and New York, crucial because of their size and influence, narrowly approved it five days later. Rhode Island, on the other hand, waited until May 29, 1790, to take action, but by that time, the government was already operating under the Constitution. The last holdout states could hardly afford to stay out of the new nation.