Summer 2010 | Volume 60, Issue 2
Without major compromises by all involved and the agreement to avoid the contentious issue of slavery, the framers would never have written and ratified the Constitution
In September 1789, at the end of the Constitutional Convention, James Madison wrote in dismay to his old friend Thomas Jefferson, who was an ocean away in Paris. “I hazard an opinion,” he lamented, “that the plan should it be adopted will neither effectively answer the national object nor prevent the local mischiefs which everywhere excite disgust against the state governments.”Madison had come to Philadelphia four months earlier determined to create a fully empowered national government designed to replace the state-based system under the Articles of Confederation. Despite his own best efforts, however, the delegates to the convention, so he thought, had proved unequal to the task, producing a document that finessed the core issues behind a veneer of willfully ambiguous compromises. Madison regarded these political accommodations as loose knots that would soon unravel, predicting that the Constitution would be lucky to last a decade.
At the same time, Benjamin Franklin was expressing his own frustration with the document’s final draft but doing so in an upbeat tone that contrasted sharply with Madison’s stark sense of failure. No one—and certainly not Madison—could turn a phrase as deftly as Franklin, and his open-ended verdict was a classic statement of political wisdom in the wait-and-see mode:
I confess that I do not entirely approve of this Constitution at present: but, Sir, I am not sure I shall never approve it; for having lived long, I have experienced many instances of being obliged, by better information or fuller consideration, to change my opinion even on important subjects, which I once thought right, but found to be otherwise . . . Thus I consent, Sir, to this Constitution, because I expect no better and because I am not sure that it is not the best.
Both Madison and Franklin were well aware that the 55 delegates assembled in Philadelphia during the summer of 1787 were no gathering of demigods operating under the saintly spell of divine inspiration but rather a muster of veteran politicos set on closing a deal. But the deal they struck has endured, the United States remains one of the oldest republics in world history, and four of the sitting members of the Supreme Court claim that their judicial opinions are guided explicitly by the intentions of the original framers—all facts that make a reverential posture toward this moment almost irresistible.
Reverence should nevertheless be resisted, because there is no evidence that tongues of fire appeared over the heads of the delegates, thereby granting them momentary access to transcendent truths. The Constitutional Convention was a wholly secular occasion in which the delegates behaved like diplomats from various countries negotiating a landmark treaty. And the compromises they hammered out were calculated concessions made between the different regions or sections of what was still a work in progress called the United States. They were designing the political framework for a new nation that did not yet exist.
The most famous compromise, recognized as such by the delegates at the time and enshrined in most history books as the Great Compromise, was brokered in the early weeks of July. The issue at stake was the character of representation in Congress. (Everyone had already agreed that the new legislature should be bicameral.) The question remained whether representation should be determined by state, as in the government under the Articles of Confederation, or by population.
The arguments on both sides of that question had grown so fierce that Franklin, rather uncharacteristically, proposed that a chaplain be called in to deliver a prayer on the day of the decisive vote. Though the story is probably apocryphal, Alexander Hamilton purportedly opposed Franklin’s proposal, claiming that he saw no reason to call in foreign aid.
The Great Compromise was a split-the-difference solution, making representation by state the rule in the Senate, with two representatives for each state, and by population in the House. Most historians have described this resolution as a compromise between the large states (such as Virginia and Pennsylvania) and the small states (such as Delaware and New Jersey). The former were victorious in the House and the latter in the Senate. Although they did not realize it at the time, the adoption of state-based representation in the Senate would prove a major victory for the slaveholding states. For as the population growth in the North outstripped the South the Senate became a bastion from which proslavery states effectively blocked legislation that threatened their peculiar institution.
At the time, however, there was another reason why the most ardent nationalists at the convention interpreted the Great Compromise as a devastating defeat. George Washington, who was in the chair and prohibited from participating in the debate, let it be known that he regarded the vote as a death knell for the national cause he had left retirement to champion, expressing his “deep regret at having any agency in this business.” Madison was equally depressed at the outcome, also lamenting the Great Compromise as a fatal blow to a fully empowered federal government and predicting that any national government to emerge from the convention would be “of short duration.”
What so upset Washington and Madison had nothing to do with the different agendas of big versus small states. It was their conviction that any new Constitution worthy of the name needed to locate sovereignty in the citizenry of all the states rather than in the states themselves. They believed that there needed to be a clean break with the state-based system of the Articles and a clear line separating the jurisdiction of the newly empowered federal government and the lingering residual jurisdiction of the state governments.
The Great Compromise finessed a core question, leaving ambiguous the location of the line between federal and state sovereignty. Without much doubt, the Great Compromise accurately reflected the conflicting opinions present in the room. But it thereby left unresolved the crucial question: did the Constitution announce the arrival of a new nation-state or a more tightly bound confederation of states? The passage of time provided a different and more pragmatic answer. Namely, the Constitution provided a framework within which that question could be posed and answered on a case-by-case basis. The final answer would be determined not in Congress or in courtrooms but on Civil War battlefields. The second Great Compromise brokered that summer was an accommodation with slavery, the proverbial ghost at the banquet that haunted the deliberations, so controversial and threatening that the word itself is conspicuously absent from the final draft of the Constitution. Madison acknowledged that the slavery issue was the most divisive topic at the convention: “It did not lie between the large and small States. It lay between the Northern and Southern . . . principally from their having or not having slaves.”
Slavery insinuated itself into virtually every contested question at the convention, chiefly because its very existence posed an overlapping web of moral, political, and economic questions that could not be ignored. But the explosiveness of the subject dictated a code of silence that precluded candid conversations, creating an understanding that the word must never find its way into the final document.
Despite this etiquette of avoidance, the unmentionable subject became the occasion for two significant compromises. The first and most famous—or infamous—compromise was the three-fifths clause, whereby slaves (i.e., “that species of property”) would be counted as three-fifths of a person for purposes of representation in the House. Madison acknowledged his own discomfort with the doctrine, observing that “it may appear to be a little strained in some points.” It was in fact an awkward bargain between Southern delegates, who wanted slaves counted as full persons, and Northern delegates, who did not wish them counted at all.
The second and less renowned compromise on slavery—Madison called it “the sectional compromise”—was a backroom bargain between the delegates from New England and from the Deep South, specifically South Carolina and Georgia. The former agreed to an extension of the slave trade for 20 years if the latter supported a provision making all federal laws regulating commerce a mere majority vote rather than a supermajority of two-thirds. Though slavery was the underlying issue, the compromise is often described as a political bargain between the commercial interests of New England and the agrarian interests of the Deep South.
These two compromises, which implicitly committed the newly created federal government to an accommodation with slavery, plus the failure of the delegates to include any explicit condemnation of slavery as a contradiction of republican principles, rendered plausible the subsequent judgment of abolitionists such as William Lloyd Garrison that the Constitution was “a covenant with death.” They also support the recent neoabolitionist interpretation by David Waldstreicher, whose Slavery’s Constitution says it all in its title.
The ringing clarity of that designation needs to encounter the more muddled reality, namely that neither the strongest advocates for slavery nor its most strident opponents left Philadelphia believing they had gotten what they wanted. Antislavery delegates wanted an immediate end to the slave trade, an explicit statement prohibiting the expansion of slavery into all the western territories as a condition for admission into the union, and the adoption of a national plan for gradual emancipation akin to plans already adopted in several Northern states. Proslavery delegates wanted no restrictions placed on the slave trade or on slavery in the territories, and a specific provision assuring the property rights of all slave owners. Both sides went back to their respective state ratifying conventions apologizing for their failure to win an unequivocal victory.
For those who believe that the Constitutional Convention was the last realistic opportunity to put slavery on the road to peaceful extinction—and hindsight offers some support for that belief—then the framers unquestionably missed that opportunity and failed that test. But within the
historical context of 1787–88, during the deliberations in Philadelphia, and then the debates in the 12 ratifying conventions (Rhode Island boycotted the whole process), neither the proslavery nor antislavery advocates believed that they had resolved the question one way or the other.
The second Great Compromise, much like the first, postponed a deeply divisive political problem that seemed impossible to resolve at the time. It was clear to all the delegates that a definitive resolution of the slavery question—most especially any insistence that slavery be gradually phased out—would have doomed passage and ratification of the Constitution. The distasteful but nonnegotiable reality was that one could have a nation with slavery, or one could not have a nation. Every argument about the accommodations with slavery reached by the framers that summer in Philadelphia should be made within the context of that reality.
Of all the political compromises in American history, the second Great Compromise brokered at the Constitutional Convention was probably the most controversial and most consequential. Much like the first Great Compromise, the decision it delayed eventually required a Civil War to resolve. The celebratory glow surrounding the framers today needs to be replaced by a more somber light, and the moral podiums from which people second-guess their judgments should be put aside forever.