Constitutional Government: Writing the Constitution
Copyright © Henry J. Sage 2011

The Northwest Ordinance | The Road to Philadelphia | Ratification | Keys to Understanding | The Constitution

By the mid-1780s it had become apparent to men like James Madison, Alexander Hamilton, John Jay and others that the United States could not survive and prosper under the Articles of Confederation. Although the Articles said that the United States was to be a permanent union, it was not a nation so much as a federation of sovereign nations. There was no executive authority, no national judicial system, and no mechanism to collect revenue for the collective use of the states. What the Articles did create was a "firm league of friendship with each other, for their common defence," but the mechanisms to provide for that, and defense were clumsy and awkward at best. Although many of the other provisions within the Articles were preserved in the Constitution, as independent nations, each having one vote in the Confederation Congress, it would have been virtually impossible to conduct business in the national interest. Meetings were held for the purpose of calling for amendments to the Articles of Confederation, but a convention was called for that purpose, Madison, Hamilton, and others quickly decided to scrap the articles and create an entirely new document. The result was the United States Constitution.

The founding fathers believed that their efforts were guided by Providence, not in the sense of an intervening supernatural god, so much as by the natural good fortune that aids worthy causes.  Evidence for that belief can be seen in a fact that once the Treaty of Paris had been signed, the nations of Europe busied themselves with their own affairs and paid little attention to the fledgling nation.  That was a good thing, for under the Articles of Confederation, the thirteen states, still considering themselves sovereign entities, had scant means of defending themselves, raising funds for common needs or maintaining good order and discipline in and between the thirteen jurisdictions. The brief trial and error period, which lasted six years until the Constitution went into effect in 1789, were enough to get the country situated on a firm constitutional foundation.  Had the process overlapped with the early years of the French Revolution, which soon degenerated into terrorism and despotism, the experiment in democracy, which failed in France, might have seemed far less attractive to the Americans.  In other words, had we delayed the process of creating the Constitution, the our political history might have taken a very different, possibly les fortunate, course.

The Great Land Ordinances

One thing that America did have plenty of was land, though the use of it would bring continuing troubles with Indians until late in the 19th century.  During the American Revolution, the Americans resolved not to treat their territories as colonies.  Following the war, Congress sold millions of acres of land to large companies, but those companies had trouble attracting settlers.  Congress therefore realized that some form of control was necessary in the territories that were not yet states.

At the end of the war, several of the states claimed extensive territories west of their own boundaries, but by 1786 all the western territories had been turned over to the federal government.  The Confederation Congress soon decided that the western territories were not to be treated as colonies with the sorts of abuses that the British had imposed upon the original Americans, and a careful policy was worked out.

In 1784 Jefferson drafted an ordinance providing that when the population of a territory reached that of the smallest state, that territory would be eligible for statehood.  The Land   Ordinance of 1785 provided for a layout of townships of 36 square miles, 6 miles on a side with a north and south orientation, divided into one-square-mile lots of 640 acres, to be sold at $1 per acre.  One section was set aside to be sold for income supporting public schools (the first national education law written anywhere), which reflected Jefferson’s commitment to public education as essential to democracy.  The Ohio and Scioto land companies were formed; Marietta, Ohio, was established as the first town in the new territory.  (Marietta remains proud of that distinction to this day.)

The Northwest Ordinance

In 1787 the territory northwest of the Ohio River, which eventually came to comprise the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin, was designated the Northwest Territory, and the Northwest Ordinance of 1787 carefully outlined the process through which the territories would become states.  Each territory was to have a governor, a secretary, and three judges, all chosen by Congress.  When any territory’s population reached five thousand, the male adults there would have the right to elect an assembly.

Once the population reached sixty thousand, the territory could call a convention to draft a constitution and apply for statehood.  In addition, the Ordinance provided for a Bill of Rights that guaranteed freedom of religion, proportional representation trial by jury, and other rights; and slavery was permanently excluded from the territory.  Needless to say, if the provisions of the Northwest Ordinance had been applied to the remaining territories, many of which were soon to become states, the extension of slavery and thus the entire future of the American nation would have been considerably different.

The essential point about the Northwest Ordinance is that America did not see its territories as part of an empire, but rather as territory that would join the original thirteen states on an absolutely equal footing, with the same privileges, rights, and responsibilities.  The Northwest Ordinance has been considered significant enough that some historians have said that its philosophy of equality of territories and new states is part of our constitutional heritage.  Along with the Declaration of Independence, the Northwest Ordinance is seen as one of the highest achievements of the Confederation era.  The principle behind the Northwest Ordinance was carried into the Constitution in Article IV, Section 4, which states:  “The United States shall guarantee to every State in this Union a Republican Form of Government.”

More on Northwest Ordinance

Shays’s Rebellion. In August of 1786 a violent protest erupted in Massachusetts over economic hardships that had resulted in foreclosures of homes and farms. Leader of the rebellion was Daniel Shays, a farmer who had been a captain during the Revolutionary War and was a veteran of the Battle of Breed’s Hill. Massachusetts farmers were frustrated because they were unable to pay their debts due to depressed crop prices, and mortgages were being foreclosed. Shays marched his insurgents to Springfield, threatening the federal arsenal there. State militia backed by federal forces eventually drove off the Shaysites, but the uprising underscored the weaknesses of the Confederation government and the inadequacy of the American interstate commercial structure.

Americans from George Washington to Abigail Adams were horrified by the prospect of a new rebellion. After receiving an alarming letter from Henry Knox about the possible spread of the insurrection to other states, Washington declared it “liberty gone mad.” In a letter to Henry Lee  of October 31, 1786, Washington wrote:

The picture which you have exhibited, and the accounts which are published of the commotions, and temper of numerous bodies in the Eastern States, are equally to be lamented and deprecated. They exhibit a melancholy proof of what our trans-Atlantic foe has predicted; and of another thing perhaps, which is still more to be regretted, and is yet more unaccountable, that mankind when left to themselves are unfit for their own Government. I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned upon any Country. In a word, I am lost in amazement when I behold what intrigue, the interested views of desperate characters, ignorance and jealousy of the minor part, are capable of effecting, as a scourge on the major part of our fellow Citizens of the Union;…

... You talk, my good Sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found; and if attainable, that it would be a proper remedy for the disorders. Influence is no Government. Let us have one by which our lives, liberties and properties will be secured; or let us know the worst at once. … To be more exposed in the eyes of the world, and more contemptible than we already are, is hardly possible.

James Madison also received alarming reports from the north. The situation reminded many that mob rule was sometimes seen as a natural outgrowth of an excess of democracy. Thomas Jefferson was less bothered by the uprising, believing that a little violence was necessary for the good health of liberty, but it was obvious that the federal government could not respond to the needs of the people. In the end, Shays’s rebellion furthered the cause of those who wanted a radical revision of the Articles of Confederation.

Making a New Government: The Road to Philadelphia

By 1785 it had become apparent that the government of the Articles of Confederation was making it difficult to resolve issues among the states. In order to deal with waterways that formed state boundaries, including the Potomac River and Chesapeake Bay, a conference was called at Mount Vernon, where James Madison, George Mason, and others discussed commercial issues. An outcome of the meeting hosted by Washington was that the Virginia legislature invited all the states to attend a meeting in Annapolis in 1786.

The Annapolis Convention. For various reasons, including difficulty of long-distance transportation, the Annapolis convention was only lightly attended. Twelve representatives from five states, including Alexander Hamilton, James Madison and Edmund Randolph, met even as the Confederation Congress was attempting to reorganize itself. The convention, however, accepted a proposal drafted by Hamilton to request all the states to meet in a convention in Philadelphia in May 1787, “to render the Constitution of the Federal Government adequate to the exigencies of the Union.” Spurred by, among other things, the fear generated by Shays’ rebellion, Congress finally endorsed the plan in February 1787 and called for a convention “for the sole and express purpose of revising the Articles of Confederation.”

THE CONSTITUTION:  “THE REPUBLICAN EXPERIMENT”

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“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy
—Library of Congress 
   

The Philadelphia Convention. The writing and adoption of the Federal Constitution was a vital second step in making the American Revolution and republican experiment a permanent success. It is clear that if the nation of thirteen states could not operate effectively with a weak central government, a nation of thirty, forty, or fifty states would never have become possible. For Alexander Hamilton, James Madison, and other far-thinking political leaders, attempts to amend the Articles of Confederation would only be, to use a modern analogy, rearranging deck chairs on the Titanic. If the nation were to survive and prosper, the Articles would have to go. The men who gathered in Philadelphia in May, 1787, were not, however, necessarily as convinced as Hamilton and Madison that a fresh start was needed.

Twelve states appointed 55 delegates to the Philadelphia convention. Rhode Island sent none, although a few of its distinguished citizens wrote to the members expressing support for the enterprise. Few of the delegates were in attendance the whole time; when the work was complete 39 delegates signed the final draft. They were a distinguished group—Jefferson called them a collection of "demigods." Many of the delegates knew each other from having served together in the Congress, and many of them had been actively involved in writing their own state constitutions. They were well-versed in political matters and were cognizant of historic examples of governments going all the way back to the Roman Republic. Jefferson himself was in Paris as America's ambassador to France, and John Adams represented United States in London. Other notables who were absent included Sam Adams and Patrick Henry, who "smelt a rat." Even those who attended were uncertain of the possible outcome of the meeting. Indeed, it was only after repeated persuasion by Virginia's governor Edmund Randolph and others that George Washington reluctantly agreed to attend, finally convinced that his absence would be damaging to the cause.

Pennsylvania sent the largest delegation, all eight of whom eventually signed the final document. Virginia's was perhaps the most distinguished group, whose seven delegates included George Wythe and George Mason in addition to Madison, Randolph, and Washington. New York sent three delegates, including, of course, Alexander Hamilton. The other two New York delegates disapproved of what was being done and left before the Constitution was completed. Hamilton was the only signer from New York. As a group the delegates were young and well-educated, many of them being college graduates and attorneys. All were cognizant of the momentous nature of the task that faced them. Although the official start of the convention had been set for May 14, a quorum of seven states was not present until May 25, transportation at the time being difficult. For a thoroughly fascinating account of the Convention, see Catherine Drinker Bowen’s classic Miracle at Philadelphia (Boston: Atlantic, 1966.)

madisonMadison’s Role. For those who have had the pleasure of visiting James Madison’s home, Montpelier, in Orange, Virginia, they have probably approached that property on a highway known as the Constitution Route. Madison, they soon discover, is known as the father of our Constitution, and the title is more than fitting. No one worked harder than James Madison to achieve the new form of government that he felt was vital for the success of the American nation. Madison’s notes on the Convention are still the best source we have of the historic event.

Educated at the College of New Jersey, later Princeton University, James Madison was well-versed in matters legal and political. His preparation for the convention was prodigious, and it included reading a “literary cargo” of books sent to him from Paris by his friend Jefferson. Arriving early in Philadelphia, he also acquainted himself with Philadelphia’s most distinguished delegate, Benjamin Franklin, whose friendship and wisdom he came to value enormously. Knowing that as a slight and frail man, he would not make an imposing figure on the convention floor, Madison put together a formula for government known as the Virginia Plan and then had it introduced by the more charismatic and well-known governor of Virginia, Edmund Randolph.

Washington Presides. The first task of the delegates was to select a president, and the choice was obvious: Once again George Washington would lead the vital enterprise. Although Washington participated very little in the debates, his presence in the chair was essential during the long hot summer. The dignity with which he held himself, and the knowledge among the delegates of the sacrifices he had made to achieve liberty, made his position as president one of the highest importance, especially as the summer heat pressed down on the delegates, whose tempers flared from time to time.

Two primary sources provide detailed information on Constitutional Convention: Max Farrand, ed., The Records of the Federal Convention of 1787., 4 vols. (New Haven: Yale University Press, 1966.) James Madison, Notes of Debates in the Federal Convention of 1787 (New York: Norton, 1987.)

The Convention organized itself in such a way as to maximize the possibility of success. First, they agreed that all of their deliberations would be secret, fearing that if news of their proposed document were to leak out, false impressions might be created that would jeopardize eventual ratification. Second, they arranged themselves into a committee of the whole so they could openly discuss various proposals and then recommend them for adoption by the formal convention. Although that move may sound frivolous, it had a serious purpose: After a day of heated debate, the committee might adopt a resolution for presentation to the convention—the very same members—on the following day. With the intervening time for reflection, the convention would have the opportunity to take a fresh look at what had been proposed. They also allowed themselves to revisit issues previously decided, in case later deliberations on other parts of the plan required changes to what had already been decided.

The Legislative Branch. When a quorum of states present late in May, Virginia Governor Edmund Randolph introduced the Virginia Plan, which went beyond revision of the Articles of Confederation and outlined a completely new national government. The plan called for a bicameral legislature, a separate executive, and a separate judicial department. It became immediately apparent that some delegates were by no means prepared to go that far. At that point the convention dissolved itself into a committee of the whole, and the debating began. The major issue for consideration was the structure of the national legislature. Madison noted that the delegates from Delaware were bound not to accept an agreement that removed the equal vote of each state in the legislature. Clearly, compromises would be needed.

In June the smaller states, led by New Jersey, proposed an alternative plan. In essence, the New Jersey plan sought to retain the Articles of Confederation and amend them without depriving the individual states of their sovereignty. It was a plan designed to continue the government as a federation rather than as a consolidated national government. As such, the New Jersey plan was in sharp contrast to the Virginia plan. A New York representative  argued that New York would never have sent delegates to a convention that intended to discard the Articles. The battle lines were drawn.

The issue was representation in the national Congress: the larger states feared that with equal representation in the House, the small states might gang up on them and, in effect, nibble them to death. The small states, on the other hand, feared that the larger states might run roughshod over their interests if representation were proportional. Both plans were referred to the committee of the whole, and after a few days the New Jersey plan was rejected. Debate on revision of the Virginia plan droned on until Washington began to fear that no resolution would be possible.

On July 2 Roger Sherman of Connecticut observed that the convention was “at full stop.” To break the impasse over representation, a special committee was formed with one delegate from each state assigned to find a compromise. George Mason and Benjamin Franklin were members. They worked out a compromise known as the  Connecticut or Great Compromise: The smaller states would be represented proportionately by population in the lower house, and the states would be represented equally by two Senators each in the upper house. On July 16 the compromise was approved by the convention.

The Executive Branch. The creation of an executive brought about the decision to have an elected office of president. Although not as difficult to resolve as the issue of representation in Congress, the role and powers of the chief executive were still a matter of considerable concern. The idea of creating a monarchy was discussed but never seriously considered, as it was inconsistent with the concept of republicanism, though George Washington would have been an acceptable figure as a monarch. But Washington had no male descendants, and the idea of a hereditary monarchy was out of the question in any case. There was talk of a dual structure or even an executive of three members, but it was feared that if they disagreed, an impasse might occur, blocking government action. After much debate, they decided on a single elected executive, the president. The president’s term was set at four years, and he was eligible for reelection.

In the end, the president was given substantial power: He was the commander in chief of the armed forces; he had the power to make treaties, with the advice and consent of the Senate; he could veto congressional legislation, though it could be overridden by a two-thirds vote in both houses; he had the power to grant pardons; he would appoint ambassadors, ministers, justices of the Supreme Court and other judges and heads of government departments (cabinet officers); and he had the responsibility to ensure that the laws of the United States were faithfully executed. An executive with that much power would not have been acceptable during the revolution, when King George was seen as a tyrant by many.

In some respects the president had more power than King George III had held. Partly for that reason, the president was not to be elected directly by the people, but by an electoral college, the makeup of which was left to the states. For the few first few decades of American history, for all practical purposes the president was elected by the state legislatures. It was not until the time of Andrew Jackson that presidents began to be elected by the people, still indirectly through the Electoral College.

The Judicial Branch. The delegates spent far less time on discussion of the judicial branch. Article III, Section 1 of the Constitution, states:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

The Constitution thus created only one court, the Supreme Court. The remaining structure of the court system was left to Congress. For historical reasons courts were not particularly popular in that era. English courts were seen as places where the king’s prerogatives were executed rather than a place where the rights of the people were defended. Thus Americans were in no mood to see courts created with large powers. It would not be until the tenure of Chief Justice John Marshall that the Court began to attain its proper place as a third and coequal branch of government.

Article IV. Once the major issues had been decided, a committee of detail was appointed to work out the finer points. The convention recessed while to committee went about its work. The remaining articles addressed several important points. Article IV provided for equal application of laws across state boundaries—states cannot nullify or fail to recognize laws of other states. Persons committing crimes in one state can be extradited if they have fled to another state. Slaves—“Persons held to Service or Labour”—escaping into other states must be returned to their owners.

Article IV also provided for admission of new states and stated that “The United States shall guarantee to every State in this Union a Republican Form of Government,” a provision that would become critical during the post-Civil war era.

Article V: Amendments. With few exceptions, anything in the Constitution is subject to amendment. Article V of the Constitution outlines the process by which this can happen. Whether initiated by both houses of Congress or by the state legislatures, any amendment must still be ratified by the legislatures of three-quarters of the states. It is rather remarkable that in more than two hundred years the Constitution has been amended only twenty-seven times. Ten of those amendments are what we call the Bill of Rights, and two of them cancel each other out (Prohibition and repeal.) The most important amendments were those that ended slavery, created United States citizenship, gave women the right to vote, and changed the method by which senators were elected. Interestingly, the basic structure and functioning of government has not been modified at all since 1789.

Article VI. Article VI provided that all actions, laws, treaties, etc., created by the Confederation government would be carried forward under the Constitution. Importantly, Article VI also states that “no religious Test shall ever be required as a Qualification to any Office of public Trust under the United States.” The principle of the separation of church and state finds its roots here. It is worth noting that there is no reference to god, providence or any other form of divinity in the Constitution.

Slavery and the Constitution. There can be no doubt that the men in Philadelphia knew that the issue of slavery serious, and in many ways inconsistent with the principles expressed by Thomas Jefferson in the Great Declaration. No less a figure than George Mason, himself a slave owner and author of the Virginia Bill of Rights, foresaw the dangers of slavery. On August 22, 1787, during convention debate over the issue of slavery, as recorded by James Madison, Mason said:

This infernal traffic originated in the avarice of British Merchants. . . . Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view that the General Government should have power to prevent the increase of slavery. [emphasis added.]

Although we do not know exactly what Mason meant by national calamity, civil war would certainly fit the definition. Many historians and civil rights advocates have bemoaned the fact that the Constitutional convention did not deal with the issue of slavery. But as we shall see below, the process of getting the Constitution signed and ratified was a huge challenge, and trying to deal with slavery in the bargain would almost certainly have doomed it to failure. Still, it must be said that failure to deal with the issue and recognizing it in the Constitution de facto, though the word “slavery” does not appear in the document, was bound to make it much more difficult to deal with in the future.

The Constitution did recognize slavery in the language of persons bound to “a term of service or Labour.” It made provisions for the return of fugitives from slavery, and it adopted the three-fifths compromise—the counting of three-fifths of the slave population in the states for representation in the House of Representatives—as a means of pacifying the South. Furthermore, any restriction on the importation of slaves was not to be permitted under the Constitution until 1808, a part of the Constitution designated as not subject to amendment.

The best that can be said about the issue of slavery in the Constitution is that the creation of a republican form of government made possible the eventual abolition of slavery, but ridding the nation of that “peculiar institution” would be a long, painful, and bloody process.

Article VII: Ratification. Article VII states: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
We Americans tend to take our Constitution for granted, assuming in retrospect that “of course it was adopted—why wouldn’t it have been?” The fact is that the Constitution came perilously close to not being ratified at all. Why? For one thing, the Constitution granted more power to the national government than King George had ever wielded over the colonies. There were other reasons.

First, the Constitutional Convention violated its charge from the Confederation Congress by writing a new constitution instead of amending the Articles. Second, many feared the absence of a bill of rights. The convention, with minor exceptions, had not addressed individual rights, feeling that the state constitutions would protect individual rights adequately. But Americans were used to seeing things in writing and wanted those rights assured; thus many citizens objected to the proposed constitution because it lacked of a bill of rights. Still, the signatures of George Washington, Benjamin Franklin, James Madison, and others on the document could not be ignored. It would be up to the states to decide the fate of the proposed form of government.

signingThe Convention Concludes. On September 17, 1787, 39 delegates signed the newly written Constitution out of the 55 who had been elected delegates. Thirteen had departed for one reason or another, and three refused to sign, most notably George Mason of Virginia. Mason’s chief complaint was that the Constitution lacked a bill of rights, but he had additional reservations which he shared with a number of others. Of those who did sign, almost all, including George Washington, had reservations about their work. Yet all of them, including Washington, Franklin and Madison, felt that the completed document was as good as they could have achieved under the circumstances. They realized that ratification would be a challenge, and the departing delegates were well aware that it would not be easy to achieve ratification once they returned to their states.

There was also the matter of what the Confederation Congress would decide to do with the document which had been transmitted to them. The framers were fully aware that they had superseded their charter, which had been to amend the Articles of Confederation. Clearly they had gone beyond that, and Congress was under no obligation to accept their work and transmit it without amendment or comment to the states. In the end, however, after brief discussion, that is exactly what they decided to do. The fate of the Constitution was now in the hands of the Confederation Congress. If they followed Article VII, thirteen special state conventions would be held for purposes of ratification. Once nine of them approved, the United States Constitution would go into effect in the ratifying states.

Ratification: The Constitution Goes to the States | Keys to Understanding the Constitution

Commentary on the Constitution

independence hall

"The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. … It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses." —John Adams

“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their Constitutional right of amending it or their revolutionary right to dismember it or overthrow it.” –Abraham Lincoln

“The makers of our constitution undertook to secure conditions favorable to the pursuit of happiness. . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of the rights and the right most valued by civilized men.” –Supreme Court Justice Louis D. Brandeis

“Yes, we did produce a near-perfect republic. But will they keep it? Or will they, in the enjoyment of plenty, lose the memory of freedom? Material abundance without character is the path of destruction.” —Thomas Jefferson

“The preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people.” —George Washington


Outside Independence Hall when the Constitutional Convention of 1787 ended, Mrs. Powel of Philadelphia asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" With no hesitation whatsoever, Franklin responded, "A republic, if you can keep it."

Federal Age Home | Updated June 2, 2017