Story of Our Constitution - E. M. Tappan

A New Constitution

When the convention met, on May 28th, the rules of order were presented by the committee, and proved to be simple and sensible. A complicated motion was to be divided into its parts, and each part voted on separately. If the delegates of any State preferred to postpone a vote to the following day, this was to be done. How voting was to be carried on in the sessions was a difficult question to decide. Naturally, as the larger States represented more people, they thought they ought to have more votes; and quite as naturally, the smaller States did not agree to this. Indeed, the delegates from Delaware had been absolutely forbidden to submit to anything of the kind. The Virginia delegates very wisely concluded that it would be better to avoid the opposition of the smaller States and make no objection to their having an equal vote, trusting to their being reasonable and yielding if this was at any time about to interfere with forming a strong, trustworthy government.

The rules for attention were as strict as those of any schoolroom, for while a member was speaking, no one was allowed to talk or read "book, pamphlet, or paper, printed or manuscript"—they were nothing if not definite, those makers of the Constitution, and they left no loopholes. They looked out for the manners of their members, too, for it was positively forbidden to walk between the president and the person speaking; and on adjournment every member was commanded to stand in his place until the president had passed him.

A letter was presented and read, signed by a number of the substantial citizens of Rhode Island, regretting that the upper house of their legislature had refused to appoint delegates, and promising to do their utmost to have the conclusions of the convention adopted by their State.

The convention then adjourned, but at the next meeting the lines of good behavior were drawn even more strictly, for it was voted that no member should be absent without leave, that no committees should sit "while the house shall be, or ought to be, sitting." Evidently, there was to be no wasting valuable time in that convention. Members were to attend strictly to business.

Independence Hall


It was also decided that no word spoken in the house should be repeated beyond its walls. But Madison, the student of ancient republics, knew well that, while the convention would pass, the day would surely come at some future time when every word of the constitution that he hoped to see formed would be closely scanned, and when details of how it was formed would help to interpret its meaning. Therefore he took his seat with quill and inkhorn directly in front of Washington, where he could hear every word, and took notes of what was said. He never missed a session, and each day, after he went home to his lodgings, he wrote out his notes. Half a century later, Madison died. He was the last survivor of the fifty-five makers of the Constitution. There was no longer any reason for secrecy, and the notes were then published.

There was one point, the most essential of all, upon which it was certain that the members would not at first agree. This was, as has been said, whether to patch up the old ship and try to keep it afloat by pumping, or to build a new one. That is, should they try to amend the old Articles of Confederation by which they had been governed—or rather, not governed—or should they form a new constitution?

Now was the time for the Virginia delegates to bring forward their plan. Edmund Randolph, of their number, governor of Virginia, was an experienced speaker; and therefore this had been left to him. He spoke first of the Articles of Confederation, and pointed out their weakness so forcibly that the listeners must have wondered how they had ever lived under them a single day. If enemies come to our shores, he said, Congress can do nothing to protect us. Congress cannot raise an army, neither can it raise money; and no army of volunteers can be raised without money. It cannot even settle a quarrel between States or a rebellion against its own authority. Congress has no power to impose duties; in short, it is far less strong than the constitution of many of the States. The whole country is in danger of anarchy, and Congress is so feeble that it can do nothing but advise and suggest.

Governor Randolph then read the fifteen resolutions that the Virginia delegates had agreed upon. These gave an outline of a government as they believed it should be. He made it perfectly clear that he was not aiming at patching up the old Confederation in the hope that it would somehow get along; but at establishing a strong government in which the Union and not the individual State should be the supreme power. "This is the opportunity," he said, "to establish peace, harmony, happiness, and liberty. I beg that you will not suffer it to pass away unimproved."

Then there was discussion indeed. What do you mean by "supreme power?" was asked. It was explained that it meant a government above that of the separate States; a government of such authority that if its decrees clashed with those of the States, the States were to yield. To some of the members the suggestion to put such power into the hands of Congress seemed as momentous as it would seem to-day if it were proposed to take away most of the powers of Congress and put them into the hands of the separate States.

Everybody talked and everybody questioned. Do you mean to abolish the State governments altogether? Have we any right even to discuss a new government in a convention called by the old government? Is it wise to pass amendments that the States will never agree to? When the question was put: "Resolved, That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary,"  it was passed by a vote of six to one. It was a strenuous day, and it is no wonder that Washington was glad to go to a party that evening.

The New York vote was divided, Alexander Hamilton voting for the Constitution, the other delegate present voting against it. New York had played a shrewd game. It was certain that a new constitution would be proposed, and New York did not wish to have any "supreme power "making changes in her commercial regulations; so she had sent with Hamilton two other delegates who would be sure to vote against giving up the Articles of Confederation.

There would be a new constitution, that was now settled—if the separate States accepted the work of the convention. It was decided that the "national legislature," that is, Congress, should consist of a lower and an upper house [the House of Representatives and the Senate]. This vote would have been unanimous had not Pennsylvania, probably out of respect to the opinion of Franklin, who thought a single house better, voted against it.

The next question was how the States should be represented in Congress. That touched a sensitive point. The wealthy States would, of course, have preferred to have representation based upon the taxes which were paid to the government; the Southern States would have liked to base it upon the number of inhabitants; the Northern States would have preferably counted only the free inhabitants. Virginia had generously suggested that it might be based upon either property or free inhabitants. The tactful course was to let the matter rest for a while. It would be enough for the time being to agree that some change in the old system of representation should be made. Later, they could settle details.

There was no reason, however, why the question how Congress should be elected should not be considered; but here, too, there was a decided difference of opinion. The lower house was first discussed. Some thought that members ought to be elected by the legislatures of the States.

"I expect our federal pyramid to rise high," said one member, "and therefore I wish to give it as broad a base as possible. I believe that the whole people should choose their representatives in the lower house."

"But the great body of the people are not well informed in matters of government; they are easily misled," objected a third; and one who had just passed through the experience of Shays's Rebellion in Massachusetts agreed with him. "The people are often dupes," he said. "Men who have something to gain by it go about among them with their false stories, and there is no one at hand to show their falseness."

"Still, the lower house is to be our House of Commons," said another thoughtfully. "It ought to know and sympathize with all kinds of people. We must look out for the rights of all, high or low."

Then Mr. Madison made one of his quiet, reasonable speeches and turned the plan to elect by legislature into a sort of "House that Jack built." "In some of the States," he said, "the people choose electors, and the electors choose the legislators. Now if these legislators choose the lower house, and the lower house chooses the upper house, and the upper house chooses the executive, the people will be lost sight of. I believe that our great fabric to be raised will be more stable if it rests on the solid foundation of the people themselves, rather than on the pillars of the legislatures." It was "Resolved: That the members of the lower house be chosen by the people."

The convention had now decided that there should be a new constitution, with legislative, executive, and judiciary powers; that Congress should be made up of two houses, and that the lower house should be elected by the people themselves. It had passed over details and unimportant matters, and had also put one side for the time questions that would have led to "irritating discussions." They had set to work wisely, those makers of the Constitution. They had not tried to find out in what they differed, but in what they agreed. When that was done and they had the substance of a constitution before them, some of the points on which they now disagreed would not seem so important, and it might be easier to yield to one another.

The legislative department would make the laws, but who would see that they were carried out and punish any who might not obey them? That would be the work of the executive division of the government, and of how many persons should this consist? Now that for nearly a century and a half we have had one man, a president, for chief executive, this does not seem a difficult question to decide; but it was a real puzzle to the honest men who were trying to do their best for the country in all the years to come. They had grown up under the rule of a king, but they had made their country into a republic, and they had no experience to guide them.

One speaker came out boldly in favor of a single person. There was a dead pause. "Shall I put the question?" the chairman asked. "This is a point of great importance," said Franklin, "and I hope that before the question is put, the gentlemen will deliver their sentiments on it."

"Deliver their sentiments" they did, now that the ice was broken. Everybody had something to say. It was almost as if some one was thinking aloud somewhat like this: "One man would feel the responsibility more than several. He need not stand alone, for a council could be appointed to aid and advise him. Or, there might be three executives; but it would be rather difficult in military matters to have a general with three heads!

"And how should he be chosen? Some States had been in the habit of choosing their chief magistrate by vote of the people. This had proved to be successful, but it might not be successful when tried throughout the country. The national legislature makes the laws, and perhaps it would be best for that body to choose the executive to enforce them. Would three years be too short a term of office? Would seven years be too long? If the executive does not approve of any law passed by Congress, shall he have the right of veto? If he neglects his duties or acts contrary to law, how can he be deposed? Ought he to be paid a salary?" Franklin thought not, that the honor should be sufficient reward; and he spoke of the great commander-in-chief who had served his country for eight years with no salary. If the House of Representatives were chosen directly by the people, would it be well for the legislature to choose the Senate, and so represent the States as States? If so, how should it be chosen?" Realizing how weighty a question any one of these is, it is a wonder that the brains of these men did not whirl. Perhaps they did.

So the discussion went on. From time to time a main point was laid aside until the way for it had been made more plain by clearing away some minor points. The rules of order had aimed at giving the delegates as much freedom as if they were thinking aloud. It was quite allowable to pass a motion for the time being in order to clear the road for another, even with the realization that this decision was not final and the matter would come up again later, and that if a member changed his mind during the interval, he could change his vote without being called fickle and inconsistent.

The question of the equality of the States was always cropping up in one form or another. The small States took the ground that a State was a State, and one should have the same rights as another. The large States felt that the desires of many should carry more weight than the desires of a few. One member declared that the only satisfactory method of treating the matter would be to spread out a map of the United States and divide it into thirteen equal parts. Another said that if a large State was to have more votes than a small one, a rich man ought to have more votes than a poor man.

Here were two parties, the supporters of the small States and the supporters of the large States. Neither party could understand why the other could not see the matter from their point of view. They were all getting a little nettled and out of patience. One of the New Jersey members had declared that neither he nor his State would ever "submit to despotism or to tyranny "; and a Pennsylvania delegate had suggested that the citizens of Pennsylvania were equal to those of New Jersey. This was the time for Franklin to make some of his tactful remarks. He reminded the members that no one was ever convinced by a man's declaring positively that his mind was made up and he would never change it. "We are sent here," he said, "to consult, not to contend with each other." He smiled at the notion that the large States would swallow the smaller ones, and declared it to be fully as likely, under the Articles of Confederation, that the small States would swallow the large ones. Quite in Franklin's own fashion he went on to prove his point mathematically. "Suppose, for example," he said, "that seven smaller States had each three members in the House, and the six larger to have, one with another, six members; and that, upon a question, two members of each smaller State should be in the affirmative, and one in the negative, they would make affirmatives, fourteen; negatives, seven; and that all the larger States should be unanimously in the negative, they would make, negatives, thirty-six; in all, affirmatives, fourteen; negatives, forty-three. It is then apparent that the fourteen carry the question against the forty-three, and the minority overpowers the majority, contrary to the common practice of assemblies in all countries and ages." It was not very probable that such a case would occur, and the delegates must have smiled at the idea; but the smile cleared the air, and things went on more smoothly.

The fifteen resolutions of the Virginia plan had now been acted upon or postponed, and Judge Gorham, of Massachusetts, had prepared a report summing up the action that had been taken. Just at this point New Jersey and several other States asked for more time to consider this plan, and also to present another, which they called "purely federal."