A Patriot's History of the United States: From Columbus's Great Discovery to the War on Terror (25 page)

Other delegates who did attend were relatively young (averaging forty-two years of age) in comparison to the older Whigs who had fomented the Revolution nearly twenty years earlier. Aside from Washington, Franklin arrived with the most prominent reputation. His famous and familiar face, with his innovative bifocals and partially bald head, made him the best-known American in the world. He had become America’s public philosopher, a trusted soul whose witticisms matched his insight. While in Philadelphia, Franklin, often posing as the voice of reason, brought a distinct agenda. He had only recently been named president of the Philadelphia Abolition Society, and in April 1787 he intended to introduce a proposal calling for a condemnation of slavery in the final document. Only through the persuasions of other northern delegates was he convinced to withdraw it.

Franklin stood out from the other delegates in areas other than age as well. Nearly a third of the delegates had held commissions in the Continental Army, and most came from the upper tier of American society—planters, lawyers, merchants, and members of the professional class. They were, above all, achievers, and men well familiar with overcoming obstacles in order to attain success. Contrary to the critiques of historians such as Charles Beard and Howard Zinn, who saw only a monolithic “class” of men manipulating the convention, the fact that most of the delegates had been successful in enterprise was to their credit. (Does any society truly want nonachievers, chronic failures, malcontents, and perennial pessimists drafting the rules by which all should live?) Each had blemishes, and even the leaders—Hamilton, Franklin, Madison, Morris, James Wilson, Washington (who presided)—possessed flaws, some of them almost insurmountable. But a rampant lust for power was not among them. As British historian Paul Johnson noted, “These were serious, sensible, undoctrinaire men, gathered together in a pragmatic spirit to do something practical, and looking back on a thousand years of political traditions, inherited from England, which had always stressed compromise and give-and-take.”
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Sharp differences existed between factions within the convention, not only from the handful of antinationalists, who threatened to disrupt any program that seemed odious, but also from the natural tensions between farmers and merchants, between slaveholders and free-soil advocates, and between Northerners and Southerners. A final source of contention, though, arose between states with larger populations, such as Virginia, and those with smaller populations, such as New Jersey.
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Another split emerged, this one between Madison and Hamilton, over the occupations of those who would govern, Hamilton advocating a distinction between what he called the “private interests” (whether of individual members, states, or localities) and the “public interest” (which included the continuation of republican ideals). It boiled down to a simple question, Were men governed by altruistic motives or base self-interest? Washington thought the latter. It was unrealistic, he contended, to expect ordinary people to be influenced by “any other principles but those of interest.”
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Hamilton agreed, arguing that lawyers comprised the only class with no immediate economic stake in matters. Offering a suggestion that tends to make modern Americans shudder, Hamilton said that while the state legislatures should rightly be dominated by merchants, planters, and farmers, the national legislature should be populated by lawyers! For all his insight—French minister Talleyrand called him the greatest of the “choice and master spirits of the age”—Hamilton failed to foresee that by the middle of the twentieth century, through tort litigation, lawyers would come to have an immediate and extremely lucrative “interest” in certain types of legislation, and that every law passed by the national Congress would require a geometrical increase in the numbers of attorneys needed to decipher (and attempt to evade) it.

The ultimate irony is that no matter which group triumphed on the other compromise issues, it was the inexorable demand generated by the need to write laws and the concomitant legalisms that gradually pushed the farmers and merchants out of the halls of the legislatures and pulled the lawyers in. Only toward the end of the twentieth century, when it was almost too late, did Americans start to appreciate the dangers posed by a bar that had virtually unlimited access to the lawmaking apparatus.

The division over proportional representation versus state representation formed the basis for two rival plans of government, the so-called Virginia Plan and the New Jersey Plan. Madison, Washington, and Edmund Randolph had drafted the Virginia Plan, an extreme nationalist program that aimed to scrap the Articles and create a powerful republican government in its place. Their proposal called for an end to state sovereignty and the creation of a viable national state comprised of three equal branches. A president would serve alongside federal judges (with lifetime terms) and a bicameral legislature, in which the lower house would be elected proportionately and the upper house would be selected from a list of nominees sent from the state legislatures on the basis of equal representation for the states. According to their plan, the lower house would give the highly populated states more representation. Finally, the Virginia Plan proposed a veto power over state laws so that, as John Jay said, the states would lose sovereignty and be viewed “in the same light in which counties stand to the state of which they are parts…merely as districts.”
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Even the nationalist-dominated Philadelphia convention opposed such sweeping change. In June, opponents rallied around William Paterson’s New Jersey plan, calling for a beefed-up confederation type of central government. Small states agreed that the national government needed muscle, most especially the powers to tax internally and externally.
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They also proposed three, but much less powerful, branches of government. Congress was to appoint a supreme court and plural executive committee, creating the semblance of a three-branch system. Its most important feature, though, lay in what the New Jersey plan rejected: proportional representation. Instead, Paterson proposed a unicameral Congress, with equal representation for each state, with all the powers of the Confederation Congress.

Delegates began to debate the disparate plans, but all realized the Virginia Plan would triumph as long as its adherents were willing to compromise over the proportional representation feature and the national veto of state laws. Several compromises ensued, the most important of which, the Connecticut Compromise, (or Great Compromise), concerned proportional representation. Divisions between large and small state factions dissolved as each gained one legislative body tailored to its liking. The House of Representatives, in which members would be elected directly by the people, would be based on population determined by a federal census. It represented “the people” in the broadest sense, and terms of the members were kept at a brief two years, requiring representatives to face the voters more often than any other elected group. On the other hand, the Senate would represent the interests of the states, with senators chosen by state legislatures for six-year terms, one third of whom would come up for election every two years. Clearly, the structure of the compromise not only addressed the concerns of each side, but it spoke to another overarching concern—that change be difficult and slow. No matter what burning issue consumed Americans, at any given time only one third of the Senate would be up for reappointment by the state legislature, providing a brake on emotion-driven legislation. Their wisdom in this matter has been magnified over time. Issues that one moment seemed momentous faded from popular interest in years or even months. Slow the process down, the Founders would say, and many problems will just disappear without laws.

There was another touch of genius to the numerous staggered terms and differing sets of requirements. As the French observer Alexis de Tocqueville later pointed out, “When elections recur only at long intervals, the state is exposed to violent agitation every time they take place. Parties then exert themselves to the utmost…to gain a price which is so rarely within their reach; and as the evil is almost irremediable for the candidates who fail, everything is to be feared from their disappointed ambition.”
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For a House seat, the loser of a contest could try again in two years, and after the Seventeenth Amendment to the Constitution, at least one of a state’s Senate seats could be contested every four years. No matter how bad the election, and how massive the defeat, those out of power knew that political winds changed, and with the single-member district system, a person only had to win by one vote to win the seat. Thus the system encouraged a fundamental political patience that proved so successful that the Democrats, in the late 1800s, would go sixty-two years—from Lincoln to Franklin Roosevelt—and elect only three Democratic presidents (one of them, Grover Cleveland, twice), while the Republicans, in the late twentieth century, went forty years without a majority in the House of Representatives. In each case, the party out of power never came close to desperation or violence. Indeed, the opposite occurred, in which unceasing campaigning led to a new quest for office beginning the day after an election.

If arguments over how to count representatives seemed at the top of the delegates’ agenda, the disagreements often only masked an even more important, but unspoken, difference over slavery between the members from the northern and the southern sections. Virginia, Georgia, and the Carolinas had sufficient population at the time to block antislavery legislation under the new proposed House of Representatives structure, but already ominous trends seemed to put the South on the path to permanent minority status. First, the precedents being set that same summer in the Northwest Ordinance suggested that slavery would never cross the Ohio River. More important, the competition posed by slave labor to free labor, combined with the large plantations guaranteed by primogeniture, made it a surety that immigration to southern states would consistently fall behind that of the North. Fewer immigrants meant fewer representatives. So the House was in jeopardy in the foreseeable future. To ensure a continued strong presence in the House, southern delegates proposed to count slaves for the purposes of representation—a suggestion that outraged antislavery New Englanders, who wanted only to count slaves toward national taxes levied on the states by the new government. (Indians would not count for either representation or taxation.)

On June 11, 1787, Pennsylvanian James Wilson who personally opposed slavery, introduced a compromise in which, for purposes of establishing apportionment and for taxation, a slave would be counted as three fifths of a free inhabitant.
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(The taxation aspect of the compromise was never invoked: the new secretary of the treasury, Alexander Hamilton, had a different plan in place, so it became a moot element of the compromise, essentially giving the South an inflated count in the House at no cost). At any rate, Wilson’s phrase referred obliquely to “free inhabitants” and all other persons not comprehended in the foregoing description, and therefore “slavery” does not appear in the founding document.
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Putting aside the disturbing designation of a human as only three fifths of the value of another, the South gained a substantial advantage through the agreement. Based on the percentage of voting power by the five major slave states—Georgia, Maryland, Virginia, and the two Carolinas—the differential appeared as follows: (1) under the one-state-one-vote proposal, 38 percent; (2) counting all inhabitants (except Indians), 50 percent; (3) counting only free inhabitants, 41 percent; and (4) using the eventual three-fifths compromise numbers, 47 percent.
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This amounted to no less than a tacit agreement to permanently lock a slave block into near-majority status, “perpetually protecting an institution the Fathers liked to call temporary.”
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Delegates to the Constitutional Convention thus arrived at the point at which they all knew they would come. Americans had twice before skirted the issue of slavery or avoided dealing with it. In 1619, when black slaves were first unloaded off ships, colonists had the opportunity and responsibility to insist on their emancipation, immediately and unconditionally, yet they did not. Then again, in 1776, when Jefferson drafted the Declaration of Independence and included the indictment of Great Britain’s imposition of slavery on the colonies, pressure from South Carolina and other southern states forced him to strike it from the final version. Now, in 1787, the young Republic had a third opportunity (perhaps its last without bloodshed) to deal with slavery. Its delegates did not.

Several examples can be cited to suggest that many of the delegates thought slavery was already headed for extinction. In 1776 the Continental Congress had reiterated a prohibition in the nonimportation agreement against the importation of African slaves, despite repealing the rest. During the war, various proposals were submitted to the Congress to offer freedom after the conflict to slaves who fought for the Revolution. Southern colonies blocked these. After the war, several northern states, including New Hampshire (1779), Pennsylvania (1780), Massachusetts (1783), Rhode Island (1784), and Connecticut (1784) all expressly forbade slavery in their constitutions, adopted immediate or gradual emancipation plans, or had courts declare slavery unconstitutional.
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Most encouraging to anti-slave forces, however, in 1782 Virginia passed a law allowing slave owners discretion on freeing their slaves.

Jefferson’s own
Notes on the State of Virginia
imagined a time after 1800 when all slaves would be free, and Madison labeled proslavery arguments in 1790 “shamefully indecent,” calling slavery a “deep-rooted abuse.”
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Founders such as Hamilton, who helped start the New York Manumission Society, and Franklin, whose last major public debate involved a satirical lambasting of slavery, had established their antislavery credentials. Perhaps the most radical (and surprising) was Washington, who, alone among the southern Founders, projected an America that included both Indians and freed slaves as citizens in a condition of relative equality. He even established funds to support the children of his (wife’s) slaves after her death and, in his last will and testament, freed his own slaves.
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