A Few Parchment Pages Two Hundred Years Later

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Another aspect of the working methods of the framers helps explain the relatively speedy adoption and ratification of the Constitution. In 1839, on the fiftieth anniversary of the establishment of the national government, John Quincy Adams spoke of the federal Constitution as having been “extorted” from the “grinding necessity of a reluctant nation.” He was attesting to the fact that only a combination of bold innovation, compromise, and concession made it possible to frame and ratify the Constitution. Adams may well have been overstating the case, for in fact, the overwhelming majority of the delegates to the Philadelphia convention were nationalists of one sort or another, convinced of the need to confer a taxing power on a central government, to invest it with jurisdiction over foreign and interstate commerce, and to establish a framework that would be the supreme law of the land.

Within this extraordinary company of statesmen there developed sharp differences about how such a constitution could be made to conform to truly republican principles, how vestiges of sovereignty could be left to the states, just what powers should be enumerated to the national (or federal) government, and how far the states could be restrained. The result was a series of compromises and concessions, some minor and easily settled, some major and involving prolonged debate.

School texts invariably refer to the Great Compromise by which the small states gained equality in the Senate while the House of Representatives was made proportional to population. But even within that compromise, credited to the Connecticut delegates, there were additional compromises. Once it was settled that the House was to be elected by the people, the issue arose as to how the Senate was to be elected—also by the people, as the democratic nationalist James Wilson proposed; or by the House, as Edmund Randolph recommended; or by the state legislatures, an idea set forth by John Dickinson. The last suggestion was the one adopted, and it was a tribute to the delegates’ concern about setting up a federal rather than a national constitution, thereby recognizing that certain powers inhered to the states. The Senate represented the states, and Article V of the Constitution guaranteed that no state could be deprived of equal suffrage in the Senate. This equality of the fifty states is a cardinal element of our federal system, reinforced by the Tenth Amendment, according to which “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

On the issue of choosing senators, James Wilson’s vision proved the sharpest, for the Senate came in later years to be perceived as a tool of the big business interests that tended to dominate the state legislatures. The Seventeenth Amendment, which was ratified in 1913, provided for direct election of senators by the people, vindicating Wilson’s original judgment. While the large states won proportional representation in the House, the Northern states could hardly be expected to permit the South to count blacks, who were not eligible to vote, for purposes of that representation. Nor did the South care to include its slave population in the head count that would determine the amount of taxes it would have to pay in direct taxation. The result: Another compromise by which representation and direct taxes in the lower house would be based on “free persons,” including servants bound for a term of years (a favored labor source of white labor in the tobacco states of Maryland and Virginia), and three-fifths of all other persons, “excluding Indians not taxed....” As a result, in counting population a black was included as three-fifths of a white person. The compromise gave something to each side: for the South, more Southerners to be represented in Congress; for the North, more heads to tax.

If the Great Compromise resolved differences between the states about representation, the second major compromise resulted from a confrontation between North and South about commerce. Everyone had agreed that conferring power over commerce upon the national government, along with the power to tax, was a prime motive for calling the convention. But the South now had second thoughts. States that shipped farm staples to a world market believed that this would work to the advantage of the North—which was heavily engaged in trade and shipping—while adding disproportionate costs to Southern exporters. To protect themselves against possible discrimination, some in the South sought to require a two-thirds vote in each house for passage of commercial legislation. The scholarly and creative James Madison, rising above sectional prejudices, prevailed upon the convention to reject this proposal and to give Congress the power to regulate commerce by a simple majority vote.

Nonetheless, every regional concession brought its price and begot its compromise. Thus, the great slavery issue came to the fore when the delegates took up the matter of import and export duties. The South pro- posed that Congress be forbidden from levying a tax on the importation of slaves or from prohibiting their importation altogether. Virginians, who were finding slavery less profitable than did their more southerly neighbors, did not join the Southern bloc. Nevertheless, over the objections of Virginia’s great libertarian George Mason and of a divided North, the delegates worked out a compromise whereby no prohibition on the importation of “such persons as any of the states now existing shall think proper to admit” could be permitted before the year 1808. Even the North was split on this crucial and emotional vote. Nor was there a solid South.