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For decades, scholars have debated whether the U.S. Constitution was not only a compromise on the institution of bondage, but if it was in fact a pro-slavery document.
Ironically, both 19th-century abolitionists and their Southern opponents argued that it was. Though of course they made diametrically opposed conclusions from that consensus.
The Constitution did ensure continuation of the African slave trade for at least another 20 years, it included a fugitive clause to return escaped slaves to their masters if they fled to free states, and it notoriously ensured Southern influence and power in national government with the three-fifths compromise.
Historian Don Fehrenbacher, among others, countered this interpretation by contending that the framers hadn't intended to make slavery a national institution supported by the Union's fundamental law.
These supporters of the Constitution-as-anti-slavery argument usually interpret slavery as a necessary evil that had to be compromised upon in order for the Convention to succeed and the Constitution to be adopted. They point to the text of the Constitution, in which the Founding Fathers avoided the contentious terms "slave" or "slavery" altogether by euphemistically referring to slaves as "all other persons."
Over time, Fehrenbacher said, the federal government adopted the position that slavery was a national institution fully protected by the Constitution, but many contemporary Americans disagreed and their dissent fueled the sectionalism that led, in the end, to the Civil War.
The three-fifths compromise of Article I, Section 2, was the Constitution's most controversial slavery-related clause. It read:
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, 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.
In other words, the number of representatives from each state would be determined by its total white (and assimilated Indian) population, plus three-fifths of its total slave population. When a slaveowner's property was assessed for taxes, the government counted three-fifths of his slaves in calculating his total assets.
Many Northerners thought slaves who couldn't vote shouldn't count at all. Southerners wanted them to count as whole people, although that was a pretty bold argument for them to make, since they simultaneously contended that their slaves were their property, equivalent to a plow, a mule, or a house.
How could a human being be property at all, let alone the dual embodiment of property and population? Then again, white women couldn't vote either, but they too were counted for purposes of establishing representation, even if they didn't have to undergo the horrors and violations of being considered "property."
The delegates never really dwelled on these questions. Instead, they struck a bargain between the Northern desire to tax the slaveowners for their property, and the Southern demand for increased representation, since slaves composed such a substantial portion of their population.
The basic structure of the three-fifths compromise had already been proposed in the Confederation Congress in an amendment that would make population the basis for fiscal requisitions, instead of land values. So, the three-fifths ratio was adopted into the Constitution as the means of apportioning representatives and direct taxes.
At the time, the three-fifths formula wasn't very controversial. A few brave delegates, like Gouverneur Morris of Pennsylvania, George Mason of Virginia, and Rufus King of Massachusetts, all attempted to condemn the "nefarious institution" as a glaring anomaly within a republic. Prominent delegates Benjamin Franklin and Benjamin Rush, members of the Pennsylvania convention that ratified the U.S. Constitution, were both members of the Pennsylvania Abolition Society. But most others attempted to avoid the issue, squashing any debate over it.
Most Founding Fathers believed that slavery would eventually die out. Thomas Jefferson claimed that in Virginia, "nearly the whole of the young men" were won over to the emancipation cause "as fast as they come into public life."blank">terrible, horrible, no good, very bad...weak point.
One of the most influential—and controversial—history books ever published was Charles Beard's An Economic Interpretation of the Constitution of the United States, in 1913.
Beard, a professor of politics at Columbia University, was a progressive historian—a member of the Republican Party, not a Marxist—committed to reforming the federal government to save American democracy from, what he considered to be, the abuses of capitalism.
Beard's work was influenced by his contemporary context, in which he and other progressives hoped that the Supreme Court would prove more amenable to federal regulation of trusts and congressional labor laws to protect industrial workers. Beard clearly admired the Constitution's framers and the work they accomplished, but he also demystified those framers, the process by which the Constitution was framed, and the motivations for doing so.
Beard analyzed each individual convention delegate—in alphabetical order, to boot— and described their economic background and interests, to demonstrate how they each stood to benefit financially from passage of the new governmental structure.
His findings? None of the delegates represented the interests of small farmers or mechanics. Most of 'em came from towns or coastal regions where personal property was highly concentrated.
Essentially, Beard argued that these framers shaped a new government to curb the excesses of democracy and to protect wealthy men with property interests, including themselves. Property interests later became business, which subsequently became synonymous with the despised corporate oligarchy of Beard's era.
Marxist historians had mounted similar arguments before him, but Beard's status within the profession and his judicious tone brought credibility to his economic interpretation among mainstream scholars and created an uproar upon publication of the book. Over 11 million copies of the work were sold in various languages around the world.
Former President William Howard Taft and others soon emerged to challenge Beard's thesis. In the decades that followed, numerous historians and political scientists mounted counter-arguments and a consensus soon followed that the Founding Fathers had actually put their personal interests aside, both political and economic, for the sake of building a new and better government.
Many pointed out that not all creditors or slaveholders always voted the same way. So, while they may have shared some economic or class interests, any commonalities didn't necessarily supersede other factors like geographic region, education, and religion. Economists have noted that the framers couldn't have known exactly how their interests would be affected by all the provisions on which they were voting.
But of course, the argument continues. Recent studies have sought to defend the economic interpretation of the Constitution, while modifying or expanding on certain aspects of the original Beard thesis. One examination found that personal or constituent interests were statistically significant determinants of a delegate's vote at the convention, regardless of whether the issue was constitutional or a matter of financial interest.
In other words, there probably was some sort of connection between a person's socioeconomic standing and the way that they voted in regard to the Constitution and the measures that comprised it. But we'll leave it up to you to connect the dots.
"Little Jemmy Madison" was only 36 years old at the time of the Constitutional Convention. He weighed 140 pounds, and stood five-feet-six-inches tall.
But he'd prove to be a constitutional giant.
A Princeton graduate—and a very eligible bachelor—Madison had avidly studied political theory from the ancient Greeks to the Swiss and everything in between.
At 25, he'd been a Virginia delegate to the Continental Congress, in which the Declaration of Independence was drafted by Jefferson, his friend and fellow Virginian. At 33, he was elected to the Virginia legislature and secured passage of the religious freedom legislation which was once again drafted by his colleague, Jefferson.
Madison was the key figure behind the creation and adoption of the Constitution as a necessary remedy to the weaknesses of early American government. Though not all of his proposals passed, Madison was chiefly responsible for guiding the process and for recording the proceedings for posterity.
Together with Alexander Hamilton and a little help from John Jay, Madison authored the Federalist Papers to persuade the electorate that the Constitution ought to be ratified and that, as historian Joseph Ellis has written, a "republican government would prove more stable when extended over a large landmass and diverse population."blank">Patrick Henry. Despite his initial opposition, Madison was also ultimately responsible for writing and ushering the Bill of Rights through the First Congress.
But the work of John Locke and others reveal that England was also the birthplace for notions that ran contrary to such concepts of unquestionable and divinely ordained authority. This was in no small part because revolutions and internal struggles among the royals revealed imperfections in the system. These internal conflicts also produced settlements between the nobles and the king, or Parliament and the king, that established precedents for a basic set of rights to be given to all Englishmen.
This process dated back to 1215, when English barons successfully demanded a statement of privileges from King John known as the Magna Carta. The document provided implicit evidence that not only nobles, but the people at large, possessed certain powers that even a king couldn't defy.
The Magna Carta established a precedent—though often violated in the centuries to follow—that all future monarchs were in fact subject to the rule of law. English common law itself derived from the Magna Carta, and it was English common law which the founding fathers relied upon to guide their own endeavors with the U.S. Constitution.
Just as subsequent English laws couldn't abridge or erase the rights granted by the Magna Carta, so the founders designed the American Constitution to become "the Supreme Law of the Land."
The Constitution's debt to the Magna Carta can be clearly seen in the Fifth Amendment of the Bill of Rights, which declares, "No person shall...be deprived of life, liberty, or property, without due process of law."
Written 575 years earlier, the Magna Carta ensured a similar right, that "No freeman shall be taken, imprisoned...or in any other way destroyed...except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will we deny or delay, right or justice."
Today in the National Archives, visitors can view a later version of the Magna Carta, confirmed by Edward I in 1297, presented courtesy of the Perot Foundation—of Ross Perot, the independent presidential candidate in 1992 and 1996—and by subsequent purchaser David M. Rubenstein. One of very few Magna Carta manuscripts to leave Britain, it's on display alongside the Declaration of Independence and the U.S. Constitution in the rotunda of the National Archives Building in Washington, D.C.
Still, the Constitution, despite relying on precedent, was nonetheless a revolutionary document, for it created a government by and for the people, whereas predecessors like the Magna Carta had relied upon a monarch to guarantee certain rights to his subjects.
In his Second Treatise on Government—written in 1681 and published in 1690—English philosopher John Locke described in theory the three branches of government that would become reality under the United States Constitution:
The legislative branch was, according to Locke and American founding fathers who were influenced by his philosophy, the most important branch of the three, since it controlled the purse strings and crafted the laws that governed society.
Though Congress was the most important of the three, each branch possessed checks and balances in relation to the other two. The president could veto congressional legislation, Congress could override the veto with a two-thirds majority, the Supreme Court could declare laws unconstitutional, and so on.
The founders understandably feared the greed and lust for power that exists—to varying degrees—within most humans. Additionally, because monarchies were the dominant form of government in the Western world, the founders sought to design an infrastructure that would thwart any attempts at establishing an autocracy or a military dictatorship.
So, like, exactly what happened in post-revolutionary France under Napoleon. Good thinking, guys.
Among Constitutional Convention delegates, Alexander Hamilton of New York and James Madison of Virginia were two of the most nationalistic.
Proportional representation in Congress—that is, representation based on population—was of critical importance to nationalists, as it embodied the principle of government by and for the people, unmediated by the states.
This would provide a democratic process of selecting congressmen, but it would also strengthen federal power at the expense of the states, who—in this scenario—would be cut out of the election process for the legislative branch. Of course, such a plan would prove most advantageous for the large and populous states, like New York and Virginia.
Other nationalists—John Dickinson of Delaware, William Patterson of New Jersey, and George Read of Delaware—sought to give all states an equal say in the legislature, to build a central government strong enough to prevent one state from wielding undue influence over another.
TL;DR: One group wanted each citizen to be represented equally in Congress. The other wanted each state to be represented equally.
On June 11th, 1787, the committee of the whole voted for proportional representation in both houses of Congress, but four days later, William Paterson of New Jersey introduced an alternative—the New Jersey Plan—that would have created a small state-friendly unicameral legislature, like that of the Confederation government, with one vote for each state.
But instead of the Confederation's executive committee or the independent executive branch proposed in the Virginia Plan, Paterson proposed an executive board to be elected by the legislature and removable by a majority vote from state governors.
The larger states—Virginia, Massachusetts, Pennsylvania, Georgia, South Carolina, and North Carolina—threatened to withdraw from the convention and form their own nation if their plan for proportional representation didn't hold in the Senate.
However, that threat seemed somewhat flimsy given the geographic isolation of the southern states and the fact that New York wouldn't go along with such an idea.
But other delegates recognized the danger in pushing too hard for Madison's goals for a strong national government with proportional representation in both houses. So, Roger Sherman of Connecticut worked with Paterson and the Delaware delegation and devised the governmental structure that exists today:
Still, this "Great Compromise" didn't satisfy everyone. (Duh.)
Members of the elite, like Madison—though he would go on to defend the institution in Federalist #10—balked at so obvious a recognition of their privileged social and economic status. Madison and like-minded delegates realized that they were part of a privileged sub-set of society, but they were nervous about creating an institution that resembled an aristocratic branch.
This went against their revolutionary ideology and their commitment to democratic principles. America wasn't supposed to be stratified by hierarchies of wealth and status, even if that was the case in the late-18th century.
It was supposed to be a new country with a future apart from the old stratified regimes of Europe. So, the delegates worried about the composition of the Senate. They didn't want it to become an Americanized House of Lords, in which American money and property took the place of English blood titles that sustained undue hereditary privilege.
Despite these concerns, the compromise offered the best path forward for the Constitutional Convention and became final after more than a month of debate and negotiation.
This was in no small part because of the southern states. Normally, they would've sided with fellow large states in return for protections of slavery against the hostile New England states that had already concluded or commenced their own emancipation measures. But the southern states were equally—or even more—threatened by attacks from local Indian tribes and their Spanish allies, so they needed a strong central government to provide diplomatic and military protection. In the voting process, delegations like Georgia's canceled out their influence by splitting their votes.
By mid-July 1787, the delegates in Philadelphia had been confined to the same stifling room for more than a month hammering out their Great Compromise, and they still hadn't addressed the critical issue of the executive branch.
Many missed their wives and families, and hoped to leave the sweltering city as soon as possible. But the question of the presidency had to be answered, and it had to be answered well to thwart any attempts at military dictatorship or oligarchy.
Initially, the delegates imagined a presidency consisting of one person holding office for a term of seven years, with no possibility of reelection, to be selected by a majority vote in both houses of Congress.
This somewhat unsatisfying blueprint remained in place for over three months of debate before the delegates adopted the now-familiar four-year term, with possibility of reelection. Before Franklin Delano Roosevelt served a record four terms in office during the Great Depression and World War II, there were no term limits on the presidency. But then Congress passed the 22nd Amendment in 1951, which limited presidents to two terms in office.
After all, this was the standard term in office during the previous administrations, because it was the precedent set by George Washington when he voluntarily stepped down in 1792.
By September, the convention agreed that the president
Mindful of the executive abuses of King George, the convention made sure to grant Congress the power to remove a tyrannical president through impeachment (by the House) and removal (by the Senate).
Initially, the delegates listed only "treason and bribery" as specific grounds for impeachment of the president. Later, at the suggestion of Virginia's George Mason, the convention expanded its definition of impeachable offenses to include "high crimes and misdemeanors"—a much broader, and more ambiguous, standard for removing the president.
The president was also delegated the power to make treaties with the advice and consent of two-thirds of the Senate. He or she—the language describing the actual qualifications for the presidency in Article II is surprisingly gender-neutral—actually held several powers that exceeded the British kings.
But the president could not declare war or make peace. And the president, unlike the English monarchy, could be removed by a vote of two-thirds in the Senate after conviction for impeachment in the House of Representatives.
The Electoral College, one of the most controversial institutions created by the Constitution, was largely a product of its 18th-century context.
The convention delegates were not necessarily elitists in their opposition to the concept of presidential election by direct popular vote. Yep, some certainly were, but let's get past that point for the moment.
The others were, instead, dubious of any candidate's ability, in an age of pre-modern transportation systems, to traverse the vast land area of the new nation to gain a national reputation before an election. People traveled by horseback or carriage along dilapidated pathways and dirt roads. The few newspapers in the country at the time were primarily expensive merchant sheets that contained plenty of misinformation and traveled even more slowly. Voters in any given state might have little knowledge of the character, reputation, or platform of candidates hailing from distant regions.
Additionally, 18th-century cultural custom deemed it inappropriate for a man of honor to actively and directly campaign for votes on his own behalf. The Constitution's framers feared that voters would simply select candidates who came from their home state or region, rather than using more discerning criteria to choose a candidate.
And all of the above problems with communication and transportation would've made the organization and uniform regulation of a national election almost unimaginable.
Of course, these days, we have the opposite problem. (And you could say they're still unimaginable.)
Maryland delegate Daniel Carroll nonetheless repeatedly moved for the popular election of the president, only to be voted down each time. Despite their apparent opposition to direct election of the president, Carroll's colleagues were also concerned about a possible excess of legislative power and wanted some means of countering or balancing that out with the powers delegated to the executive branch. So, a Committee on Postponed Matters was formed with an impressive array of talented delegates from a variety of states and ideological perspectives. On September 4th, the committee reported back to the group after a week of discussion. They didn't want to endorse popular election, since it had so clearly been defeated several times before, and instead, they devised the Electoral College as a compromise.
Under this plan, each state would appoint a number of electors equal to the total number of its senators and representatives. The electors would meet in their own state—not as a collective body—and would vote by ballot for two candidates. One of the two couldn't live in the elector's state. Each state's list of candidates was chosen and their vote tallies would be signed, certified, and sent to the president of the Senate, who would open them and supervise the vote tally. If one person received a majority, he became president, and the person with the second-most votes became vice president (a new concept of its own). If no one had a majority, the Senate would choose from among the top five vote recipients. If two people tied for the vice presidency, the Senate would select between them by another vote.
This plan would leave most elections up to the Senate, since the nationwide electors were unlikely to give any one candidate a clear majority. James Wilson proposed that the election be sent to the House instead, since its membership changed more frequently and factions would therefore be less likely. Roger Sherman, champion of the small states, revised the proposal so that representatives would cast only one vote each to elect the president in the event of close calls. That way, larger states wouldn't hold an advantage.
Finally, through a series of difficult compromises, the Electoral College took the form it still holds today.
There was just one catch: the convention decided to let state legislatures decide how the electors were chosen.
It wasn't long before almost all states chose their electors by popular vote. The electors became partisan representatives who acted on behalf of their political party, so their votes were predetermined based on party affiliation even before the election had taken place.
There were no political parties yet in 1787, so this outcome wasn't anticipated. Instead of independent electors who made their own choices, the people elected electors who essentially served as party delegates.
James Madison joked in his record of the constitutional proceedings that if the vice president were not made president of the Senate, "he would be without employment."
Indeed, the office was something of a tolerated after-thought proposed by the Committee on Postponed Matters. The only time the vice president would be allowed to cast a vote was in the case of a tie. If the president were to be impeached, the vice president would step down so that the Chief Justice could preside over the Senate trial. The Chief Executive could direct the military operations during wartime and send diplomats to negotiate treaties to prevent a war.
But even amidst such exceptional circumstances, the delegates assigned the legislature with a substantial role. Congress had to approve all treaties, whether diplomatic or commercial. The president's power to appoint Supreme Court justices had not yet assumed modern-day importance, because the Court itself hadn't yet established the shape and content of its role. Presidential appointments became much more significant over ensuing generations as the country amassed more economic dominance and political power on a global scale.
Plus, the initial bureaucracy wasn't nearly so powerful. At first, it was pretty much just the post office, so there weren't so many important appointments to make.
Many scholars point to such contextually specific circumstances in their efforts to explain why the entire notion of "original intent" or "original meanings" is extremely dubious at best.
Reading the past through the lens of the present is always an extremely tricky and precarious business. Colonial historian Jack Rakove was one of the most prominent scholars to do so in his appropriately titled Pulitzer Prize winning work, Original Meanings.
In that book, Rakove uses the history of the Constitutional Convention to demonstrate why the very concept of "original meanings" as we now understand it didn't exist back in 1787, so it couldn't have governed the Founding Fathers' intentions for the document they created.
But this turns into an extremely drawn-out and complicated debate within the legal field. A "doctrine of original intent" school—also known as the jurisprudence of "originalism"—emerged in reaction to desegregation and the other reformist decisions passed by the Supreme Court under Chief Justice Earl Warren in the 1950s and '60s.
This conservative reaction argued that justices ought to interpret the Constitution according to the intent of the framers who wrote it, or the legislators who drafted the subsequent amendments. Original intent theory became the guiding standard of certain Justices or administrations, like the Department of Justice under Attorney General Edwin Meese III during the Regan administration in the 1980s.
But how do you pretend to know the framers' exact intentions 220 years ago? The debate will probably never end.
In 2005, Supreme Court Justice Stephen Breyer authored a book titled Active Liberty: Interpreting Our Democratic Constitution, in which he argued against some of his colleagues on the court—like Antonin Scalia and Clarence Thomas—who claimed to follow the original intent theory.
Breyer instead argued that the Founding Fathers' intent was to promote active democracy, and he wrote that "originalist" decisions could have the opposite result. He felt the Constitution was established to set up institutions where individual citizens could participate in their government, and that was the bulwark of American democracy, and all the rest—including the Bill of Rights—specified the parameters and limitations of that democracy.
Justice Antonin Scalia instead claimed that the Constitution does have a fixed meaning that does not change over time. If the Supreme Court was to interpret its meaning for each new generation, Scalia believed, it would become a very political institution.
On the contrary, Breyer thought that the Founding Fathers used broad terms exactly because they designed the Constitution to evolve over time, and that the emphasis for judicial interpretation ought to be placed on its purpose, "fostering democratic participation to achieve democratic rule."
Conservative courts following original intent theory are more likely to invalidate congressional laws. More liberal courts—or individual justices, like Breyer—are likely to uphold those laws as a deferral to Congress, and to hold the elected branches of government most accountable to the people. For better or for worse.
But this isn't a hard-and-fast rule. Liberal justices like Breyer have also voted to strike down—for example—state limitations on abortion, on the grounds that such laws unconstitutionally limit a woman's right to make her own decisions about child-bearing.
Again, this debate will probably never end.
After achieving independence, the country under the Confederation government was saddled with heavy war debt and no effective means of collecting taxes to pay it off.
Think of it like being a fresh college grad, but it's the entire country worrying about their future.
The tobacco planters of the Chesapeake Bay region had renounced their debts in declaring independence from Britain, but now they were left without any source of credit. Fishermen had no British Caribbean market for their catches. Settlers could migrate beyond the Appalachian mountains (the previous limit of settlement, as decreed by the British), but once there, they no longer had a well-trained and equipped army to guarantee protection.
Citizen rebellions in western Massachusetts, Virginia, and Pennsylvania epitomized the widespread restlessness and discontent stirred by post-Revolution expectations and economic troubles.
Writing a constitution ain't easy, and American adherents of the republican ideology that had unified the Revolutionary patriots split into opposing factions over the Constitution.
Federalists, who supported the Constitution and the strong central government it created, tended to be elitist. They thought of political representation in terms of deference, they were preoccupied with the need to maintain order, and they believed that the Constitution would allow America to achieve its grand economic and political destiny.
Anti-Federalists, who feared that the Constitution would destroy civil liberties and true democracy by concentrating too much power in the new government, argued that the Constitution would deprive the country of its Revolutionary heritage. Lacking the connections and influence of their opponents, the Anti-Federalists were the earliest and most vocal proponents of pure democracy and a version of republicanism that granted ordinary citizens unprecedented levels of direct political power.
Patrick Henry, Samuel Adams, George Clinton, Luther Martin, and Richard Henry Lee, all heroes of the American Revolution, boycotted the Convention in Philadelphia because they objected to its purpose. They believed that it betrayed the "core principles" of the Revolution, and as historian Joseph Ellis has argued, "Strictly speaking, they were and are historically correct" (source).
The government under the new Constitution wasn't the kind of direct democracy that could flourish in small towns. People wouldn't vote directly for their senators or their president, and radical egalitarianism wasn't going to flourish under the strengthened central state. Anti-Federalists actually exhibited a broad spectrum of beliefs and ideologies. Some wanted to weaken federal authority, while others wanted only for the parameters of that authority to be more clearly delineated.
With this divide, three prominent delegates at the Constitutional Convention ended up refusing to sign the document.
The Constitution's defenders countered Anti-Federalist criticisms by arguing that the new system of government was, in Joseph Ellis' words, a necessary and "sensible accommodation of liberty to power and a realistic compromise with the requirements of a national domain."blank">Declaration of Independence by defining certain freedoms and guarding against the violation of others. Though the concept of individual rights and liberties was rooted in the tradition of British common law, the Americans went further in protecting freedom of expression and of religious worship.