During the spring and summer of 1787, fifty-five delegates representing twelve American states deliberated in a forty-by-forty foot room in the Philadelphia State House with windows closed to maintain secrecy in a meeting that became known as the Constitutional Convention. The delegates engaged in a wide-ranging, frank, civil, yet passionate and often eloquent debate on the future of American government, one that continued for nearly four months despite sometimes flaring tempers and legitimate fears that they would not reach agreement and that disunion or even civil war might follow. They concluded their work by recommending almost unanimously a proposed United States Constitution (today's Constitution without its amendments), a bold new framework for continental republican government designed to replace the Articles of Confederation. This outcome occurred even though the convention had nominally been summoned to consider amendments to the Articles, not to replace it. Even more remarkably, the convention proposed that the new Constitution become effective upon ratification by nine state conventions chosen by the people, ratification principles wholly inconsistent with the Articles.
The convention achieved a quorum and began official business on 25 May 1787. In theory, it met pursuant to a 21 February 1787 resolution of the Continental Congress authorizing a meeting for the "sole and exclusive purpose of revising the Articles of Confederation." Under that resolution, the proposed revisions were first to be agreed to by Congress and then confirmed by all thirteen states before becoming effective. In reality, before the resolution passed Congress, seven states had already chosen delegates, responding to a summons written by Alexander Hamilton and issued from an earlier convention held in Annapolis, Maryland, in September 1786. Other states were reluctant to attend a convention that might consider fundamental changes to the Articles of Confederation and insisted on congressional authorization for the convention and use of the Articles amendment rules before appointing their delegates. Only Rhode Island refused to send delegates.
The political skirmishing over the convention reflected the fact that by 1786, the United States faced social and economic troubles at home and political and financial embarrassment abroad that had led many people to conclude that the Articles of Confederation were fundamentally flawed. By 1787 sharply differing and often radical proposals for major changes in American government had gained currency. Some Americans believed that the persistent inability of the Continental Congress to agree on important issues showed that the United States should be dissolved and split up into three or four separate confederacies. Some believed that no government powerful enough to govern a continent could avoid becoming tyrannical. A few Americans were so disturbed by events that they favored a return to monarchy.
Prominent men like George Washington, who supported a strong national republican government for the United States, were disheartened by the weakness of Articles government, which they thought made the government a "jest." Washington prepared carefully for the convention, instructing supporters to find and propose a "radical cure" for government ills whether or not they thought the cure would be agreed to by the convention. Still other well-known men, like Samuel Adams, opposed any significant change in the loose alliance of states created by the Articles of Confederation.
The convention was attended by a distinguished, socially prominent group of lawyers, planters, and merchants, men Thomas Jefferson later aptly called an assembly of "demigods." The delegates included forty-two men who had sat in the Continental Congress; at least thirty Revolutionary War veterans; sixteen past, present, or future state governors; two future presidents; one future vice president; and two future U.S. Supreme Court chief justices. Collectively, they possessed substantial political experience and great political talent.
The convention has been called a "rally of nationalists," but delegates had very different political philosophies and represented states and regions with often sharply conflicting interests. Ten men are generally thought to be primarily responsible for the form of the Constitution: James Madison and Edmund Randolph of Virginia; Benjamin Franklin, Gouverneur Morris, and James Wilson of Pennsylvania; Rufus King of Massachusetts; John Rutledge and Charles Pinckney of South Carolina; and Oliver Ellsworth and Roger Sherman of Connecticut.
The convention opened by electing George Washington as its president. Washington's participation was essential to the convention's political success. He had agreed to attend very reluctantly, after first declining. At age fifty-five, he suffered from severe rheumatism and had tried to withdraw from public life, but he was determined to try to create a stronger government to prevent the collapse of the union and, against the advice of supporters, was willing to risk his reputation on the success of the convention, which many thought might fail to reach any agreement.
The convention agreed to meet secretly, and it barred delegates from reporting its proceedings. Madison later claimed that the Constitution could not have been adopted without this secrecy that, among other things, allowed delegates to take positions which would be unpopular back home and to change their minds without political repercussions.
introduction of the virginia plan
The convention debate began with Edmund Randolph's presentation of the Virginia Plan for the new Constitution. Based on proposals by Madison, the plan called for a bicameral national legislature with power to nullify state laws, a powerful executive, and exceptionally broad federal judicial powers. The new Constitution was to be ratified by assemblies chosen by the people in order to increase the Constitution's legitimacy and to prevent legislatures from blocking it. The plan was a complete nationalist overhaul of the Articles. The plan's national government proved too powerful for most delegates, but the plan provided the basic structure for the Constitution's separation of powers and dominated convention debate. (Charles Pinckney also submitted a plan, but it was not separately debated, though it may have been considered by the Committee of Detail.)
the struggle over representation
During the first several weeks of debate on the Virginia Plan, it became clear that the most contentious issue was congressional representation. The plan called for proportional representation in both houses of the legislature (today's Congress) based either on "quotas of contributions" or the "number of free inhabitants," that is, wealth or population. Virginia and other large states led by Madison and Wilson vigorously supported the principle of proportional representation in Congress, while small states like Delaware and New Jersey supported the Articles' principle that each state should have an equal vote. This debate grew so heated that both sides threatened to leave the convention if their position was not adopted. Gunning Bedford Jr. of Delaware even threatened alliance with a foreign government if his state's position was rejected. On 11 June the convention approved proportional representation in the upper house (today's Senate) by a narrow vote and appeared ready to approve a modified Virginia Plan with proportional representation in both legislative houses. This action precipitated a small state revolt.
On 15 June the small states introduced the New Jersey Plan, named after its sponsor, William Paterson of New Jersey. This plan, supported by delegates from several states, including Connecticut, New York, and Maryland, was a modification of the Articles of Confederation that expanded congressional powers to include limited taxation and commerce. It proposed a unicameral legislature with equal state votes, an extremely weak executive removable on application of a majority of state governors, and a supreme court with narrow powers. The Paterson Plan was voted down by a vote of of 7 to 3, a de facto rejection of the existing Confederation.
Yet it was now apparent that the convention would not succeed unless it could come to an acceptable agreement on representation. Madison sought to persuade small states that it was unjust and unnecessary for them to have equal votes. He argued that the real division of interest between the states was one between the northern and southern states resulting from the economics of slavery, not one between large and small states. Madison's argument convinced important delegates that there was a division over slavery but failed to persuade others that small states did not need "security" through representation. On 16 July 1787 a special committee chaired by Roger Sherman of Connecticut reported a proposal, commonly called the Great (or Connecticut) Compromise, that called for population representation in the lower house using a formula that counted slaves as three-fifths of a person, and equal state votes in the upper house. Adopted by 5 to 4, this compromise between popular representation and representation of state governments created the political basis for federalism. A similar compromise was employed in creating the electoral college.
the commerce power and slavery
Despite general agreement that the national government should have the power to control interstate and foreign commerce, delegates sharply disagreed over political control of that power. The "eastern" states (particularly New England) and the southern states had disagreed sharply over commercial issues, and many southern representatives wanted a regional veto over any national commerce power by means of a requirement that the power be exercised only upon a two-thirds vote of Congress.
Several northern states had abolished (or begun the abolition of) slavery and slave imports by 1787. Northern states also urgently wanted national taxation powers, with direct taxes to be based on wealth.
The convention recessed in late July to permit a Committee of Detail to produce a draft of the Constitution. Members of the five-man committee included James Wilson of Pennsylvania, Oliver Ellsworth of Connecticut, and John Rutledge of South Carolina. The committee's 6 August report included a detailed specification of the powers of Congress, including a two-thirds voting requirement for exercising a key commerce power, the power to control navigation (for example, requiring American southern goods to be exported in American northern ships). The committee also proposed to exempt exports from taxation and to permit unlimited imports of slaves.
These committee recommendations caused a debate over slavery to erupt. Some northern delegates, like Gouverneur Morris, attacked the morality of slavery. Rufus King vigorously attacked the idea that slave imports would be permitted to continue without any tax revenues from exports produced using slave labor (which could be used to offset costs of slavery such as slave rebellions) while the South was also given expanded representation in the Congress using the "three-fifths" formula. Southern delegates generally defended slavery and slave imports, with the notable exception of George Mason, who made an impassioned, prophetic speech against both. Several northern delegates accepted slavery and continued imports of slaves as contributory to national wealth or as a necessary evil essential to reaching agreement on a new constitution.
A committee appointed to look for a compromise then proposed that Congress be enabled to prohibit the importation of slaves after 1800. Remarkably, southern delegates then successfully sought an extension of that provision to 1808, supported by delegates from northern states that had already abolished slavery and slave imports. When southern delegates later sought to require that the commerce power be exercised only through a two-thirds vote of Congress, they were defeated by a coalition of northern and other southern delegates.
Through this negotiation, each region got what it wanted most—the North got substantial control over the commerce power, since it would control Congress initially, while the South got the right to import slaves for twenty years. This was the second major compromise of the convention. The convention also agreed to protect slavery by requiring states to permit forcible return of fugitive slaves to their owners in other states (the fugitive slave clause).
the powers of congress
In addition to broad powers over taxation, commerce, and appropriations (the "power of the purse"), the Constitution gave Congress the power to declare war and to raise national military forces. Separate authority was provided to use and control state militias to enforce federal laws, suppress insurrections, and repel invasions. Unlike the Articles of Confederation, major national economic and military powers did not have to be exercised through the states, and such laws could be enforced directly against individuals rather than states. The elimination of the Articles' requirements for supermajority state consent to major national actions and for state implementation of federal laws are among the most fundamental departures from the Articles found in the Constitution. Congress also received power to "make all Laws which shall be necessary and proper for carrying into Execution" its other powers, a grant of implied authority that was to become the basis for important assertions of national power in later years.
limits on state authority
At the urging of James Madison and others, the delegates agreed to place significant limits on state powers. The Constitution limited state economic power by providing that states could not emit bills of credit, make anything other than "gold or silver coin" legal tender for payment of debts, or pass laws impairing the obligation of contracts. States were prohibited from imposing taxes on imports or exports (except to cover administrative costs) and from entering into agreements or compacts with each other, or with foreign governments, without congressional consent.
the executive branch
Delegates had highly conflicting ideas about the executive branch. Some favored a weak presidency or a plural executive of several individuals; others favored a powerful president with a lengthy term and absolute veto over legislation. The Constitution's comparatively "energetic" (powerful) presidency was a compromise between these views.
To avoid choosing between popular election of the president and election of the president by Congress or legislatures, the convention agreed that the president would be chosen by an electoral college whose membership formula would be weighted toward small states and whose members would be chosen by states using state election rules. The president was given a four-year term, with no limit on the number of terms, but was made impeachable for "treason, bribery, or other high crimes and misdemeanors," a standard that, combined with a requirement for a two-thirds vote to impeach, was intended to make impeachment a rarely used remedy.
The president's powers included a strong veto that could be overridden only by a two-thirds vote of both houses of Congress, a compromise between those who wanted to give the president an absolute veto and those who wanted the veto exercisable only together with the judiciary. The president was given "the power of the sword" as commander in chief. The president shared the treaty power and the power to appoint officers of the United States with the Senate.
the judiciary and fundamental rights
The Constitution contained only an outline of the judicial branch structure, including a description of the jurisdiction of the federal courts. It provided for lifetime tenure for judges, widely recognized as necessary to preserve judicial independence. The Constitution also provided that the Constitution and federal laws were supreme over state laws and constitutions, a provision that bound both state and federal judges. The absence of express constitutional provisions regarding judicial review of the constitutionality of legislation—other than the federal jurisdiction and supremacy clauses, which many people regarded as sufficient authorization for such review—led to later disputes regarding the nature and limits of such review.
The Constitution contained no bill of rights, but it did protect certain fundamental rights such as habeas corpus and criminal jury trial. Most delegates thought that a bill of rights was either futile or unnecessary in a government of limited powers.
On 17 September 1787, the proposed Constitution was signed by thirty-nine men, all but three of the delegates (Mason, Randolph, and Gerry) present. The historic convention then ended.
Hendrickson, David C. Peace Pact: The Lost World of the American Founding. Lawrence: University Press of Kansas, 2003.
Jensen, Merrill, ed. The Documentary History of the Ratification of the Constitution. 20 vols. to date. Madison: State Historical Society of Wisconsin, 1976–.
Matson, Cathy D., and Peter S. Onuf. A Union of Interests: Political and Economic Thought in Revolutionary America. Lawrence: University Press of Kansas, 1990.
Morris, Richard B. The Forging of the Union 1781–1789. New York: Harper and Row, 1987.
Onuf, Peter S. The Origins of the Federal Republic: Jurisdictional Controversies in the United States 1775–1787. Philadelphia: University of Pennsylvania Press, 1983.
Rakove, Jack N. The Beginnings of National Politics: An Interpretive History of the Continental Congress. New York: Knopf, 1979.
——. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Vintage Books, 1997.
Warren, Charles. The Making of the Constitution. Boston: Little, Brown, 1937.
George Van Cleve
Constitutional conventions, like the written constitutions that they produce, are among the American contributions to government. A constitutional convention became the means that a free people used to put into practice the
social compact theory by devising their fundamental law. Such a convention is a representative body acting for the sovereign people to whom it is responsible. Its sole commission is to frame a constitution; it does not pass laws, perform acts of administration, or govern in any way. It submits its work for popular ratification and adjourns. Such a convention first came into being during the american revolution. The institutionalizing of constitutional principles during wartime was the constructive achievement of the Revolution. The Revolution's enduring heroics are to be found in constitution-making. As jamesmadison exultantly declared, "Nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world … that free inhabitants have been seen deliberating on a form of government and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it."
Within a century of 1776 nearly two hundred state constitutional conventions had been held in the United States. The institution is so familiar that we forget how novel it was even in 1787. At the constitutional convention, which framed this nation's constitution, oliver ellsworth declared that since the framing of the articles of confederation (1781), "a new sett [sic] of ideas seemed to have crept in.… Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent."
Credit for understanding that legislatures were not competent for that task belongs to john lilburne, the English Leveller leader, who probably originated the idea of a constitutional convention. In his Legall Fundamentall Liberties (1649), he proposed that specially elected representatives should frame an Agreement of the People, or constitution, "which Agreement ought to be above Law; and therefore [set] bounds, limits, and extent of the people's Legislative Deputies in Parliament." Similarly, Sir Henry Vane, once governor of Massachusetts, proposed, in his Healing Question (1656), that a "convention" be chosen by the free consent of the people, "not properly to exercise the legislative power" but only to agree on "fundamentall constitutions" expressing the will of the people "in their highest state of soveraignty.…" The idea, which never made headway in England, was reexpressed in a pamphlet by Obadiah Hulme in 1771, recommending that a constitution should "be formed by a convention of delegates of the people, appointed for the express purpose," and that the constitution should never be "altered in any respect by any power besides the power which first framed [it]." Hulme's work was reprinted in Philadelphia in 1776 immediately before the framing of the pennsylvania constitution by a specially elected convention. That convention, however, in accordance with prevailing ideas, simultaneously exercised the powers of government and after promulgating its constitution remained in session as the state legislature. Until 1780 American legislatures wrote constitutions.
The theory underlying a constitutional convention, but not the actual idea of having one, was first proposed in America by the town meeting of Pittsfield, Massachusetts, on May 29, 1776. Massachusetts then had a provisional revolutionary extralegal government. Pittsfield asked, "What Compact has been formed as the foundation of Government in this province?" The collapse of British power over the colonies had thrown the people, "the foundation of power," into "a state of Nature." The first step to restore civil government on a permanent basis was "the formation of a fundamental Constitution as the Basis ground work of Legislation." The existing legislature, Pittsfield contended, although representative, could not make the constitution because, "They being but servants of the people cannot be greater than their Masters, must be responsible to them." A constitution is "above the whole Legislature," so that the "legislature cannot certainly make it.…" Pittsfield understood the difference between fundamental and ordinary law, yet inconsistently concluded that the legislature should frame the constitution on condition that it be submitted to the people for ratification.
Pittsfield was merely inconsistent, but the Continental Congress was bewildered. The provisional government of Massachusetts, requesting advice from Congress on how to institute government, said that it would accept a constitution proposed by Congress. That was in May 1775. Many years later, when his memory was not to be trusted, john adams recalled in his autobiography that congressmen went around asking each other, "How can the people institute government?" As late as May 1776, Congress, still lacking an answer, merely recommended that colonies without adequate governments should choose representatives to suppress royal authority and exercise power under popular authority. By then the temporary legislatures of New Hampshire and South Carolina, without popular authorization, had already framed and promulgated constitutions as if enacting statutory law, and continued to operate as legislatures. Adams, however, credited himself with knowing how to "realize [make real] the theories of the wisest writers," who had urged that sovereignty resides in the people and that government is made by contract. "This could be done," he explained, "only by conventions of representatives chosen by the people in the several colonies.…" How, congressmen asked him, can we know whether the people will submit to the new constitutions, and he recalled having replied, if there is doubt, "the convention may send out their project of a constitution, to the people in their several towns, counties, or districts, and the people may make the acceptance of it their own act." Congress did not follow his advice, he wrote, because of his "new, strange, and terrible doctrines."
Adams had described a procedure followed only in Massachusetts, and only after the legislature had asked the people of the towns for permission to frame a constitution and submit it for popular ratification. Several towns, led by Concord (see concord town meeting resolutions) protested that the legislature was not a competent body for the task, because a constitution had been overwhelmingly rejected in 1778. Concord had demanded a constitutional convention. In 1779 the legislature asked the towns to vote on the question whether a state constitution should be framed by a specially elected convention. The towns, voting by universal manhood suffrage, overwhelmingly approved. In late 1779 the delegates to the first constitutional convention in world history met in Cambridge and framed the massachusetts constitution of 1780, which the voters ratified after an intense public debate. With pride Thomas Dawes declared in an oration, "The people of Massachusetts have reduced to practice the wonderful theory. A numerous people have convened in a state of nature, and, like our ideas of the patriarchs, have authorized a few fathers of the land to draw up for them a glorious covenant." New Hampshire copied the procedure when revising its constitution in 1784, and it rapidly became standard procedure. Within a few years American constitutional theory had progressed from the belief that legislatures were competent to compose and announce constitutions, to the belief that a convention acting for the sovereign people is the only proper instrument for the task and that the sovereign must have the final word. A constitution, then, in American theory, is the supreme fundamental law that creates the legislature, authorizes its powers, and limits the exercise of its powers. The legislature is subordinate to the Constitution and cannot alter it.
Leonard W. Levy
Adams, Willi Paul 1980 The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era. Chapel Hill: University of North Carolina Press.
Dodd, Walter F. 1910 The Revision and Amendment of State Constitutions. Baltimore: Johns Hopkins University Press.
Jameson, John Alexander 1887 A Treatise on Constitutional Conventions. 4th ed. Chicago: Callahan & Co.
Wood, Gordon S. 1969 The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press.
In 1787, delegates from the individual states gathered at the Constitutional Convention in Philadelphia, Pennsylvania , to change the nation's government. Under the Articles of Confederation , which had been adopted in 1781, Congress proved to be weak and ineffective. As a result of a weakening economy and growing opposition to Congress, the states decided to hold a convention to address the situation. Instead of revising the Articles of Confederation to strengthen the
The idea for calling a statewide convention to solve the problem of a weak Congress came from the success of two other conventions. In November 1785, delegates from Virginia and Maryland held a convention in Alexandria, Virginia, to solve certain boundary and commercial disputes.
The success of the Alexandria Convention prompted the two states to call another convention in September 1786 in Annapolis, Maryland. Virginia and Maryland hoped that all states could be encouraged to develop a common interstate commercial policy. Only five states sent delegates to Annapolis. The result of the Annapolis Convention, however, was another invitation for the states to gather in Philadelphia in May 1787. This time the delegates would focus on the issues surrounding the powers of Congress and possible reforms to the Articles of Confederation.
At one time or another from May to September, every state except Rhode Island sent delegates to the Constitutional Convention in Philadelphia. (Rhode Island was against a powerful national government.) Seventy-four delegates were appointed by the states to attend, but only fifty-five attended. The conference quickly turned from discussing reform measures for the Articles of Confederation to establishing an entirely new government.
The decision to replace rather than revise the Articles of Confederation happened nearly immediately. After the delegates had established a process for conducting business, Virginia delegate Edmund Randolph (1753–1813) submitted a proposal to be the basis for further deliberations. The proposal, which became known as the Virginia Plan, had fifteen components that together set forth an entirely new design for the nation's government. The convention delegates agreed to discuss this new plan.
There were several issues to be resolved by the delegates. The first was to establish the strength and specific powers of the federal government as compared to the state governments. Another was to establish fair representation in the federal government. Smaller states were mostly interested in establishing a fixed number of equal representatives for each state. Larger states wanted representation to reflect the population of each state. The issue of how to count slaves for representation and taxation also had to be resolved. This issue divided the northern states, where slavery was being abolished, from the southern states. Northern states did not want slaves to count at all for representation in Congress, while southern states wanted them to count fully.
The Virginia Plan was the basis for discussions throughout the convention. It proposed a genuinely national government with broad powers. A two-house legislature was to replace the one-house Congress set forth in the Articles of Confederation. Representation in both houses would be based on population. A lower house would be elected directly by the people. In turn it would elect the upper house out of nominations made by the state legislatures. A separate executive branch was to be led by an officer elected by Congress. The officer's term was unspecified, but the officer could be elected for only one term. There was also a provision calling for a national judiciary. The government set forth by the Virginia Plan would have had the power to override any state laws.
The New Jersey Plan was introduced as an alternative by New Jersey delegate William Paterson (1745–1806). It proposed equal representation for all states in a one-house legislature, as existed already under the Articles of Confederation. It defined, however, the powers of the legislature to include the ability to collect revenue and regulate commerce. The New Jersey Plan otherwise protected the right of state governments to control business in the states. Though the proposal was quickly dismissed by most delegates, it officially set forth the small states' claim to an equal vote in Congress.
After strenuous debates, the framers settled on a few compromises. The Great Compromise set forth the provision that two houses of Congress would exist. The lower house would be apportioned representatives according to population, and they were to be elected directly by the people. The upper house would consist of two representatives for each state chosen by the state legislatures. Another compromise defined that three-fifths of the slave population would be counted for the purpose of representation and taxation. In defining the powers of Congress, delegates enumerated a much broader list of legislative powers than Congress had under the Articles of Confederation. Much of the responsibility for regulating the daily governmental business of American life, however, remained with the states.
In mid-September 1787, the convention put its various resolutions and decisions into a final draft. The Constitution set forth a powerful central government balanced within by three branches of responsibility. The legislative branch had two chambers in Congress, the House of Representatives and the Senate, and was given the responsibility for making the laws. An executive branch, led by an elected president, was to oversee the enforcement of those laws. Finally, a judicial branch headed by a Supreme Court was to decide cases under the laws through a system of independent federal courts.
The final draft of the Constitution was signed by thirty-nine delegates to the Constitutional Convention. It needed only nine states of the thirteen to ratify it to replace the government under the Articles of Confederation. New Hampshire was the ninth state to ratify the Constitution, on June 21, 1788. Several states submitted their approval with recommendations for a Bill of Rights to protect the liberties, or freedom, of people from unfair governmental action. Both North Carolina and Rhode Island rejected the Constitution fully until after the addition of the Bill of Rights .