Constitutional Convention Recap
By Sebastian van Bastelaer, Program Manager
The road to September 17, 1787 was not always smooth. For approximately four months, a total of 55 delegates from 12 states convened in Philadelphia (long a maverick, Rhode Island repeatedly declined to participate). Though the Framers had much in common—they were all educated white men, a majority practiced law and many were very wealthy—they clashed on numerous essential questions throughout the Convention.
The delegates’ debates on the Convention’s abilities, the structure of government, the apportionment of representation, the relationship between state and local governments, and the institution of slavery illustrate the often divergent beliefs and visions each Framer harbored for the future of the American government.
Yet their disposition and ability to compromise in the face of these disagreements prevented the Convention from meeting with an early end. Further, this spirit of conciliation and moderation aided the Federalists even as their handiwork was scrutinized in the contentious ratifying process. Without finding acceptable resolutions to these disputes, they feared, disaster would ensue under the existing Articles of Confederation. The importance of the moment, lost on none of the delegates, motivated each to make necessary concessions for the sake of unity.
 What Was the Convention Empowered to Do?
Though an issue that became moot following the Constitution’s ratification, the legitimacy of the Convention and the scope of its powers proved a point of controversy. The Convention was officially conceived by delegates to the Annapolis Convention of 1786. At that meeting, representatives from five states had met in Annapolis to discuss defects in the Articles of Confederation (mainly those owing to the Confederation Congress’ inability to regulate commerce and put down populist revolts).
Hampered by low attendance, the delegates—among them Alexander Hamilton and James Madison—made an appeal for another convention the following May in Philadelphia, with the goal of “devis[ing] such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the nation.”[i]
What was meant by “further provisions” was not entirely clear, and the delegates quickly clashed on the subject. James Madison’s Virginia Plan, which was read aloud by Edmund Randolph on May 29, began by resolving that the Articles of Confederation be “corrected and enlarged.” What ensued, however, was practically a wholesale abandonment of the Articles.[ii] All but admitting this the following day, Randolph moved to expunge the first resolution.[iii]
Several delegates—among them Charles Cotesworth Pinckney of South Carolina, John Lansing, Jr. of New York, and William Paterson of New Jersey—immediately argued that the Convention was not empowered to dispense with the Articles. This, they claimed, exceeded the Annapolis Convention’s charge, official instructions from their home states and the Confederation Congress’ endorsement of the Convention, which held that the Convention was for the “express purpose of revising the Articles of Confederation.”[iv] Paterson warned that renouncing the Articles would tarnish the Convention’s work and elicit accusations of “usurpation.”[v]
Mindful of this conflict, some other proposals more closely hewed to this conservative interpretation of the Convention’s prerogative. Paterson’s New Jersey Plan (discussed more in depth later) also commenced with a resolution that “the articles of Confederation ought to be…revised, corrected, & enlarged.”[vi] It kept in place some features of the Articles, as detailed below.
The Convention’s final product, of course, repudiated the Articles in favor of a completely new form of government. The debate over the meeting’s legitimacy and limits, however, continued to rage. The topic would be broached in the press and at ratifying conventions up and down the Atlantic coast.
 What Should the Federal Government’s Structure Be? What Could It Do?
Reflecting most existing state governmental structures, Madison’s Virginia Plan proposed a bicameral legislature of two branches. Alexander Hamilton’s ill-fated “British Plan” and Charles Pinckney’s forgotten Pinckney Plan likewise provided for bicameral legislatures (read our essay on Hamilton’s Plan and its political implications here). Hamilton’s system, modeled in many ways after the British government, would have a Senate whose members would essentially serve for life. Paterson’s New Jersey Plan, less of a departure from the Articles, was a system of only one branch, the existing Confederation Congress.
The several proposals varied more when it came to creating an executive. While the Articles of Confederation did not provide for an executive apart from the Congress, the delegates in Philadelphia saw plainly the importance of creating one. The National Legislature under the Virginia Plan would also select a relatively weak executive, which would have “a general authority to execute the National laws” and “enjoy the Executive rights vested in Congress by the Confederation,” including waging war and creating treaties.[vii] The competing New Jersey Plan was unclear on how many people would make up the executive, but it too would be chosen by Congress.
A federal judiciary was a point on which unanimity prevailed. Under the Articles, there had essentially been no national court system.[viii] Both the Virginia and Pinckney Plans, moreover, contained a council of revision, which could review and strike down legislation it disapproved of (see below).
The Connecticut Compromise, which formed the basis for the eventual Constitution, contained a bicameral legislature and singular executive chosen not by the legislature but by an electoral college. Article III established a judiciary, allowing Congress to create federal courts as it saw fit.
 How Many Votes Should Each State Have?
Perhaps the most important contrast between the Virginia and New Jersey Plans were the ways in which representation was apportioned. Under the Articles, each state’s delegation had one vote. The larger states hoped that their greater populations and relative wealth would give them a stronger voice. The Virginia Plan thus recommended that representation in both chambers of the legislature would be “quotas of contribution, or to the number of free inhabitants.”[ix] Either metric would have favored the larger and more populous states, such as Virginia, Pennsylvania and Massachusetts.
Smaller states, for their part, were wary of the predominance of their powerful neighbors. Delegates pointed out that, under the Articles, each state had had one vote, and asked why that should be changed. Paterson asserted that “there was no more reason that a great individual state contributing much should have more votes than a small one contributing little than that a rich individual citizen should have more votes than an indigent one.”[x] Some state delegations threatened to abandon the Convention on account of the dispute over representation in Congress.
The New Jersey Plan retained the Confederation Congress’ structure—meaning one vote per state in the only legislative branch. Constitutional scholar Michael J. Klarman calls the New Jersey Plan, rather than a serious proposal, “a bargaining ploy by small-state delegations to extract equal state representation in at least one house of the national legislature.”[xi]
The so-called Connecticut Compromise alleviated this impasse. It created the bicameral system we know today, with one chamber apportioned based on population and the other characterized by equality among the states. Having satisfied the smaller states, the Connecticut Compromise resolved the emotive issue of apportionment and held the meeting together.
The Three-Fifths Clause, too, was a result of tense bargaining. Slave states hoped to have slaves counted in order to increase their representation, while northerners questioned why “certain privileges” should accrue to “those people who were so wicked as to keep slaves.”[xii] The delegates eventually settled on the so-called Three-Fifths Compromise, reflected in Article I, Section 2, Clause 3, which reads, “Representatives and direct Taxes shall be apportioned among the Several States…according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” (For more on slavery and the Constitution, see below.)
 Should National Officials and Judges Dictate Law to the States?
As we have seen, the delegates were convinced of the necessity of a powerful Congress. While economic regulation was paramount in reducing predatory practices by the larger states, many nationalist advocates wanted a national government that could also veto or supersede state legislation. Several proposals contained councils of revision. In addition to this, the Virginia Plan permitted the National Legislature to negative (or veto) any state laws that “contravene[ed] in the opinion of the National Legislature the articles of Union.”[xiii]
Convention delegates voted down a congressional veto of legislation, but inserted instead the Supremacy Clause (Article VI, Clause 2). Luther Martin of Maryland resolved “that the Legislative acts of the U. S….shall be the supreme law of the respective States,” a motion that passed unanimously.[xiv] The Supremacy Clause aimed at ensuring that states would follow the mandates of Congress, even when those conflicted with their own laws and constitutions.
Members of the Convention also discussed whether or not judges should be able to strike down unconstitutional laws. Most of this debate centered on judges’ roles in councils of revision; the meeting only briefly discussing whether judges should practice judicial review as “expositors of the Laws,” in the words of James Wilson of Pennsylvania. Luther Martin anticipated that “as to the Constitutionality of laws, that point will come before the Judges in their proper official character.”[xv] His fellow Marylander, John Francis Mercer, “disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.”[xvi]
Now a vital component of American federalism, the concept of judicial review is unaddressed in the Constitution. Still, some foresaw its role in the constitutional system. In Federalist No. 78, Alexander Hamilton wrote,
 “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”[xvii]
 It would not be until the momentous 1803 decision in Marbury v. Madison that judicial review of legislative acts would officially become part of the American judicial system.
 Should Slavery Be Protected, Limited or Neither?
The role of slavery in the Constitution was a particularly thorny issue, as demonstrated by its not to be addressed by name in the final document. James Madison believed that sectional differences between states arose partially from “climate, but principally from the effects of their having or not having slaves.”[xviii] Some northern delegates, such as Gouverneur Morris, abhorred slavery—he referred to it as “the curse of heaven.”[xix] Despite the passion of Morris and some of his colleagues, the delegates ended up striking compromises to appease several southern delegates, who “repeatedly threatened that they would walk out of the convention…if adequate safeguards for slavery were not provided.”[xx]
The Three-Fifths Clause, as discussed above, allowed for slaves to be counted as three-fifths of one person for the purposes of congressional representation. The Slave Trade Clause prohibited Congress from banning the foreign slave trade before the year 1808; this came in response to arguments from delegates such as South Carolina’s Charles Pinckney, who asserted that southern states “can never receive the plan [i.e., the Constitution] if it prohibits the slave trade.”[xxi] This clause was buttressed by Article V, which stipulated that no amendments regarding this provision could be passed prior to 1808.
Finally, the Fugitive Slave Clause mandated that any “person held to labor” be returned to their owner, regardless of the laws of the state into which they had fled. Many states in the north nonetheless found ways to shield fugitive slaves, fomenting sectional conflicts and eventually contributing to advent of the Civil War.
Nonetheless, the Convention proved unwilling to risk the tenuous harmony among the members, providing explicit guarantees to slave owners in order to secure approval of the final document. They left the fraught issue of slavery for future generations to tackle.
This series of compromises on a variety of issues helped forge a document the signers deemed far superior to the Articles, and palatable enough to be ratified throughout the nation. Though each framer doubtless would have made certain changes if given the chance, they subordinated their own concerns for the greater good. James Madison wrote to Thomas Jefferson,  “it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.”[xxii] Despite the long odds and various flashpoints that could have sundered the meeting, the delegates came together. In drafting and signing the Constitution, they took an important step towards making Union “more perfect.”
 For more on Constitution Day, including a piece on the non-signers of the Constitution, read our other Constitution Day posts on our blog.
 For innovative lesson plans and strategies to teach the Constitution in school, check out our lesson plans.
James Madison to Thomas Jefferson, October 24, 1787. https://www.consource.org/document/james-madison-to-thomas-jefferson-1787-10-24/
 Hamilton, Alexander. Federalist No. 78. https://www.consource.org/document/the-federalist-no-78-1788-6-14/
Klarman, Michael. The Framers’ Coup: The Making of the United States Constitution. New York: Oxford University Press, 2016.
Madison, James. Notes of the Constitutional Convention. 1787.
Report of Proceedings in Congress, February 21, 1787. Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/const04.asp
Variant Texts of the Virginia Plan, Presented by Edmund Randolph to the Federal Convention, May 29, 1787.” Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/vatexta.asp
 [i] Quoted in Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (New York: Oxford University Press, 2016), 109.
[ii] “Variant Texts of the Virginia Plan, Presented by Edmund Randolph to the Federal Convention, May 29, 1787.” Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/vatexta.asp
[iii] Klarman, The Framers’ Coup, 141.
[iv] Report of Proceedings in Congress, February 21, 1787. Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/const04.asp
[v] Quoted in Klarman, The Framers’ Coup, 143.
[vi] James Madison’s Notes of the Constitutional Convention, June 15, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-15/
[viii] Under the Articles, there had been one national court, the Court of Appeals in Cases of Capture, which dealt with maritime cases (Erwin Chemerinsky, Constitutional Law: Principles and Policies, Third Ed. New York: Aspen Publishers, 2006, 34).
[ix] “Variant Texts.”
[x] James Madison, Notes of the Constitutional Convention, June 9, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-9/
[xi] Klarman, The Framers’ Coup, 154.
[xii] Cited in ibid., 299.
[xiii] “Variant Texts.”
[xiv] James Madison’s Notes of the Constitutional Convention, July 17, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-7-17/
[xv] James Madison’s Notes of the Constitutional Convention, July 21, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-7-21/
[xvi] James Madison’s Notes of the Constitutional Convention, August 15, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-8-15/
[xvii] Alexander Hamilton, Federalist No. 78. https://www.consource.org/document/the-federalist-no-78-1788-6-14/
[xviii] James Madison, Notes of the Constitutional Convention, June 30, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-30/
[xix] James Madison’s Notes of the Constitutional Convention, August 8, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-8-8/
[xx] Klarman, The Framers’ Coup, 258.
[xxi] James Madison, Notes of the Constitutional Convention, August 21, 1787. https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-8-21/; Congress did in 1808 pass a ban on the foreign slave trade.
[xxii] James Madison to Thomas Jefferson, October 24, 1787. https://www.consource.org/document/james-madison-to-thomas-jefferson-1787-10-24/
