THE SECOND FOUNDING: FROM COMPROMISE TO CONSTITUTION
Institutional arrangements, devised to accomplish collective purposes by creating routines and processes, aren’t always well suited to these tasks. The Declaration of Independence and the Articles of Confederation were insufficient to hold the nation together as an independent and effective nation-state. Almost from the moment war with the British ended in 1783, moves were afoot to reform and strengthen the Articles of Confederation.
International Standing, Economic Difficulties, and Balance of Power
Reform was, in part, motivated by a special concern for the country’s international position. Competition among the states for foreign commerce allowed the European powers to play the states against one another, creating confusion on both sides of the Atlantic. At one point, John Adams, a leader in the struggle for independence, was sent to negotiate a new treaty with the British that would cover disputes left over from the war. The British government responded that, because the United States under the Articles of Confederation was unable to enforce existing treaties, it would negotiate with each of the 13 states separately. Moreover, absent the protection of the British navy, American shipping—on which the New England states depended—was easy prey for pirates and predator nations. The government under the Articles could offer no help.
At the same time, well-to-do Americans—in particular, the New England merchants and southern planters—were troubled by the influence of populist forces in the Congress of the Confederacy and in several state governments. The colonists’ victory in the Revolutionary War not only had meant the end of British rule but also had significantly changed the balance of political power within the new states. As a result of the war, one key segment of the colonial elite—the royal land, office, and patent holders—was stripped of its economic and political privileges. In fact, many of these individuals, along with throngs of other colonists who considered themselves loyal British subjects, left for Canada after the British surrender. As the prerevolutionary elite became weaker, the prerevolutionary radicals became controlling forces in several states, where they pursued economic and political policies that struck terror into the political establishment. In Rhode Island, for example, a legislature dominated by representatives of small farmers, artisans, and shopkeepers instituted economic policies, including drastic currency inflation, that frightened businessmen and property owners throughout the country. Of course, the central government under the Articles of Confederation was powerless to intervene. Commerce within the states stagnated, and several states borrowed money just to finance their Revolutionary War debts. Americans were facing their first, but not last, debt crisis.
The Annapolis Convention
Continued international weakness and domestic economic turmoil led many Americans to consider whether their newly adopted form of government already required revision. After nearly a decade under the Articles, many state leaders accepted an invitation from the Virginia legislature to discuss this question at a conference of state representatives. Delegates from five states actually attended. This conference, held in Annapolis, Maryland, in the fall of 1786, was the first step toward the second founding. Representatives agreed to a resolution calling on Congress to send commissioners to Philadelphia at a later time “to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union.”11 This resolution was drafted by Alexander Hamilton, a New York lawyer who had served during the Revolution as George Washington’s secretary and who would play a more significant role in framing the Constitution and forming the new government in the 1790s. At the time of the Annapolis Convention, however, the resolution did not necessarily imply any desire to do more than improve and reform the Articles of Confederation.
Shays’s Rebellion
It is possible that the Constitutional Convention of 1787 in Philadelphia would never have taken place if not for a single event that occurred soon after the Annapolis Convention: Shays’s Rebellion. Like the Boston Tea Party, Shays’s Rebellion was a turning point in the young country’s history.
Daniel Shays, a former army captain, led a mob of farmers in a rebellion against the government of Massachusetts in 1787. The farmers’ goal was to prevent the county courts from sitting so that the judges could not process foreclosures on the farmers’ debt-ridden land. The state militia dispersed the mob, but for several days Shays and his followers attempted to capture the federal arsenal at Springfield, provoking the terrified state government to appeal to Congress to help restore order. Within a few days, the state government regained control and captured 14 of the rebels (all were eventually pardoned). Later that year, a newly elected Massachusetts legislature granted some of the farmers’ demands. Although the incident ended peacefully, its effects lingered and spread.
Shays’s Rebellion showed that the Congress of the Confederacy could not act decisively in a time of crisis. The mob concentrated attention, coordinated beliefs, produced widespread fear and apprehension among the people, and thus convinced waverers that something needed fixing. It prompted collective action by providing critics of the Articles of Confederation with the evidence they needed to convince the broader public that the Articles were insufficient and to push Hamilton’s Annapolis resolution through the Congress.12 Thus, the states were asked to send representatives to Philadelphia to discuss constitutional revision. Every state except Rhode Island eventually sent delegates.
The Constitutional Convention
In May 1787, 29 of the 73 total delegates selected by the state governments convened in Philadelphia. Recognizing that political strife, international embarrassment, national weakness, and local rebellion were symptoms of fundamental flaws in the Articles of Confederation, the delegates soon abandoned plans for revising the document and undertook a second founding instead—an ultimately successful attempt to create a legitimate and effective national system from scratch. Americans had learned a good deal from the shortcomings of the Articles of Confederation: for example, that executive power was a necessary component of effective government, and that without an army or navy the government could not protect its citizens’ interests. Demonstrating once again that history matters, Americans’ experiences under the Articles helped shape the new Constitution.
Interests or Ideals? For years, scholars have disagreed about the motives of the Founders in Philadelphia. Among the most controversial views is the “economic” interpretation put forward by the historian Charles Beard and his disciples.13 According to Beard, America’s founders were a collection of securities speculators and property owners whose only aim was personal enrichment. From this perspective, the Constitution’s lofty principles are little more than sophisticated masks behind which the most venal representatives sought to enrich themselves. Although Beard’s arguments are extreme, there is some foundation for them. Representatives with economic interests in the North feared debtor revolts, while southern planters feared a revolt led by enslaved people. Capital investment and its protection were weak under the Articles not only because of potential rebellions but also because of inflated currencies, limited credit markets, and outstanding public debt. Also, manufacturers needed protection from foreign competition, and exporters (primarily of southern cotton) needed the security of safe passage for their cargoes on the high seas.
Contrary to Beard’s approach is the view that the Founders were in fact concerned with philosophical and ethical ideas—that indeed, the Founders sought to devise a system of government consistent with the dominant philosophical and moral values of the day.14 Lurking in the background was a generalized suspicion of distant central government. As historian Joseph Ellis observed, this was the “core argument used to discredit the authority of Parliament and the British monarch.”15
In fact, these two interpretations (interests and ideals) belong together: the Founders’ interests were reinforced by their principles. The Constitutional Convention was chiefly organized by New England merchants and southern planters. Although the delegates did not all hope to profit personally from an increase in the value of their securities, as Beard would have it, they did hope to benefit by breaking the power of their radical foes and establishing a system of government more compatible with their long-term economic and political interests. Thus, the framers—in line with the rationality principle—desired a new government capable of promoting commerce and protecting property from radical state legislatures. They also sought to liberate the national government from the power of individual states and sometimes corrupt local politicians. At the same time, they wanted a government that would be less susceptible than the existing state and national regimes were to hostile populist forces. The Constitutional Convention was thus a grand exercise in rationality and collective action.
TIMEPLOT SOURCE: 1789–2010: U.S. Census Bureau, www.census. gov/dataviz/visualizations/023; 2020: U.S. Census Bureau, “Apportionment Population and Number of Representatives by State: 2020 Census,” https://www2.census.gov/programs-surveys/decennial/2020/data/apportionment/apportionment-2020-table01.pdf (accessed 3/11/22).
The Great Compromise. The proponents of a new government fired their opening shot on May 29, 1787, when Edmund Randolph of Virginia offered a resolution that proposed corrections and enlargements to the Articles of Confederation. Not a simple motion, it provided for virtually every aspect of a new government—and it did in fact serve as the framework for what ultimately became the Constitution.16
This proposal, known as the Virginia Plan and authored by James Madison, provided for a system of representation in the national legislature based on the population of each state, the proportion of each state’s contributions to overall national revenue, or both. (Randolph also proposed a second branch of the legislature, but it was to be elected by the members of the first branch.) Because the states varied enormously in size and wealth, the Virginia Plan appeared to be heavily biased in favor of larger states, which would have greater representation under the plan.
While the convention was debating the Virginia Plan, additional delegates arriving in Philadelphia began to mount opposition to it. Their resolution, introduced by William Paterson of New Jersey and known as the New Jersey Plan, did not oppose the Virginia Plan point for point. Instead, it concentrated on weaknesses in the Articles of Confederation, in the spirit of revision rather than radical replacement of that document. However, the plan’s vision for representation was different enough from the Virginia Plan’s scheme of representation that both documents were put before the committee to be reconciled into a common document. In particular, delegates from the less populous states, which included Delaware, New Jersey, and Connecticut, asserted that the more populous states, such as Virginia, Pennsylvania, North Carolina, and Massachusetts, would dominate the new government if representation were to be determined by population. The smaller states argued that each state should be equally represented regardless of its population.
The issue of representation threatened to wreck the entire constitutional enterprise. Delegates conferred, factions maneuvered, and tempers flared. James Wilson of Pennsylvania told the small-state delegates that if they wanted to disrupt the Union, they should go ahead. Gunning Bedford of Delaware declared that the small states might look elsewhere for friends, if they were forced. “The large states,” he said, “dare not dissolve the confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” These sentiments were widely shared. Convention delegates, acting as agents for the interests of their respective states, bargained and made attempts at persuasion in the rational pursuit of their preferred results.
The outcome of this debate was the Great Compromise, also known as the Connecticut Compromise. Under its terms, in the first chamber of Congress—the House of Representatives—members would be apportioned according to the number of inhabitants of each state. This was what delegates from the large states had sought. But in the second chamber—the Senate—each state would have an equal number of votes regardless of its size; this would address the small states’ concerns. This compromise was not immediately satisfactory to all the delegates. Indeed, two of the most vocal supporters of the small-state faction were so incensed that they stormed out of the convention. In the end, however, both sides preferred compromise to the breakup of the Union, and the plan was accepted. The framers might have been surprised by the eventual consequences of the Great Compromise. The Timeplot on pp. 48–49 shows the states with the most representatives in Congress from 1789 to today. As we can see from Table 2.1, the two states with the most House seats and Electoral College delegates (electors) in 2020 did not even exist at the time of the Founding.
TABLE 2.1
REPRESENTATION BY STATE, 2020
STATE
POPULATION
SENATORS
PEOPLE PER SENATE SEAT
HOUSE SEATS
PEOPLE PER HOUSE SEAT
ELECTORS
PEOPLE PER ELECTOR
Alabama
5,030,053
2
2,515,026
7
718,579
9
558,894
Alaska
736,081
2
368,040
1
736,081
3
245,360
Arizona
7,158,923
2
3,579,461
9
795,435
11
650,811
Arkansas
3,013,756
2
1,056,878
4
753,439
6
502,292
California
39,576,757
2
6,596,126
52
761,091
54
732,902
Colorado
5,782,171
2
2,891,085
8
722,771
10
578,217
Connecticut
3,608,298
2
1,804,149
5
721,659
7
515,471
Delaware
990,837
2
495,418
1
990,837
3
330,279
Florida
21,570,527
2
10,785,263
28
770,375
30
719,017
Georgia
10,725,274
2
5,362,637
14
766,092
16
670,329
Hawaii
1,460,137
2
730,068
2
730,068
4
365,034
Idaho
1,841,377
2
920,688
2
920,688
4
460,344
Illinois
12,822,739
2
6,411,369
17
754,278
19
674,881
Indiana
6,790,280
2
3,395,140
9
754,475
11
617,298
Iowa
3,192,406
2
1,596,203
4
798,101
6
532,067
Kansas
2,940,865
2
1,470,432
4
735,216
6
490,144
Kentucky
4,509,342
2
2,254,671
6
751,557
8
563,667
Louisiana
4,661,468
2
2,330,734
6
776,911
8
582,683
Maine
1,363,582
2
681,791
2
681,791
4
340,895
Maryland
6,195,278
2
3,097,639
8
774,409
10
619,527
Massachusetts
7,033,469
2
3,516,734
9
781,496
11
639,406
Michigan
10,084,442
2
5,042,221
13
775,726
15
672,296
Minnesota
5,709,752
2
2,854,876
8
713,719
10
570,975
Mississippi
2,963,914
2
1,481,957
4
740,978
6
493,985
Missouri
6,160,281
2
3,080,140
8
770,035
10
616,028
Montana
1,085,028
2
542,514
2
542,514
4
271,257
Nebraska
1,963,333
2
981,666
3
654,444
5
392,666
Nevada
3,108,462
2
1,554,231
4
777,115
6
518,077
New Hampshire
1,379,089
2
689,544
2
689,544
4
344,772
New Jersey
9,294,493
2
4,647,246
12
774,541
14
663,892
New Mexico
2,120,220
2
1,060,110
3
706,740
5
424,044
New York
20,215,751
2
10,107,875
26
777,528
28
721,991
North Carolina
10,453,948
2
5,226,974
14
746,710
16
653,371
North Dakota
779,702
2
389,851
1
779,702
3
259,900
Ohio
11,808,848
2
5,904,424
15
787,256
17
694,638
Oklahoma
3,936,516
2
1,968,258
5
787,303
7
562,359
Oregon
4,241,500
2
2,120,750
6
706,916
8
530,187
Pennsylvania
13,011,844
2
6,505,922
17
765,402
19
684,833
Rhode Island
1,098,163
2
549,081
2
549,081
4
274,540
South Carolina
5,124,712
2
2,562,356
7
732,101
9
569,412
South Dakota
887,770
2
443,885
1
887,770
3
295,923
Tennessee
6,916,897
2
3,458,448
9
768,544
11
628,808
Texas
29,183,290
2
14,591,645
38
767,981
40
729,582
Utah
3,275,252
2
1,637,626
4
818,050
6
545,875
Vermont
643,875
2
321,937
1
643,937
3
214,625
Virginia
8,654,542
2
4,327,271
11
786,776
13
665,734
Washington
7,715,946
2
3,857,973
10
771,594
12
642,995
West Virginia
1,795,045
2
897,522
2
897,522
4
448,761
Wisconsin
5,897,473
2
2,948,736
8
737,184
10
589,747
Wyoming
577,719
2
288,859
1
577,719
3
192,573
SOURCE: U.S. Census Bureau, “Apportionment Population and Number of Representatives By State: 2020 Census,” https://www2.census.gov/programs-surveys/decennial/2020/data/apportionment/apportionment-2020-table01.pdf (accessed 10/27/21).
The Question of Slavery: The Three-Fifths Compromise. As we have seen, slavery was a major factor in American colonial history. As a result, many of the conflicts facing the Constitutional Convention reflected the fundamental differences between slave and nonslave states, differences that pitted the southern planters and the New England merchants against each other. This was the first premonition of a conflict that would almost destroy the Republic in later years.
Over 90 percent of all enslaved persons resided in five states—Georgia, Maryland, North Carolina, South Carolina, and Virginia—where they accounted for 30 percent of the population. In some places, enslaved persons outnumbered unenslaved persons by as much as 10 to 1. Were they to be counted as part of a state’s population even though they had no rights, thereby giving slave states increased representation in the House? If the Constitution were to embody any principle of national supremacy, some basic decisions would have to address the place of slavery in the general scheme.
Whatever they thought of the institution of slavery, most delegates from the northern states opposed counting enslaved persons when determining the distribution of congressional seats. Wilson of Pennsylvania, for example, argued that if enslaved persons were citizens, they should be treated and counted like other citizens. If, however, they were property, then why should not other forms of property count toward apportionment? But southern delegates asserted that if the northerners refused to give in, they would never agree to the new government. Virtually all southerners insisted on including enslaved persons in state population counts for the purposes of congressional seat allocation, even though some, such as James Madison and George Mason of Virginia, believed that slavery was immoral. This conflict was so divisive that many delegates came to question the possibility of creating and maintaining a union of the two sections of the nation.
Northerners and southerners eventually reached agreement through the Three-Fifths Compromise. The seats in the House of Representatives would be apportioned according to a “population” in which only three-fifths of enslaved persons would be counted. These people would not be allowed to vote, but the number of representatives would be apportioned accordingly. This compromise was accepted, albeit reluctantly, by both northerners and southerners.
The issue of slavery was the most difficult one the framers faced, and it nearly destroyed the Union. Although some delegates considered slavery morally wrong—an evil institution that made a mockery of the ideals and values espoused in the Constitution—expedience, not morality, was the main factor that caused the framers to support or oppose the Three-Fifths Compromise. Northerners even agreed to permit the transatlantic slave trade to continue to keep the South in the Union. Eventually, of course, a bloody war broke out when the two sides’ disparate interests could no longer be reconciled.
An agreement reached at the Constitutional Convention of 1787 that gave each state an equal number of senators regardless of the size of its population, but linked representation in the House of Representatives to population size. Also called the Connecticut Compromise.
An agreement reached at the Constitutional Convention of 1787, stating that for the purpose of distributing congressional seats on the basis of state populations, only three-fifths of enslaved persons would be counted.
Endnotes
Quoted in Samuel Eliot Morison, Henry Steele Commager, and William E. Leuchtenburg, The Growth of the American Republic, 6th ed. (New York: Oxford University Press, 1969), vol. 1, p. 244.Return to reference 11
For an easy-to-read argument that supports this view, see Keith L. Dougherty, Collective Action under the Articles of Confederation (New York: Cambridge University Press, 2001).Return to reference 12
Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913).Return to reference 13
For an analytical treatment, see Schofield, Architects of Political Change, chap. 4.Return to reference 14
Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (New York: Knopf, 2000), p. 7.Return to reference 15
There is no verbatim record of the debates, but Madison was present during virtually all the deliberations and kept full notes on them. Madison’s notes, along with the somewhat less complete records kept by several other participants in the convention, are available in a four-volume set. See Max Farrand, ed., The Records of the Federal Convention of 1787,rev. ed., 4 vols. (New Haven, CT: Yale University Press, 1966).
