Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (23 page)

It has often been observed that much of the framers’ difficulty in deciding how to elect the president was the result of their misgivings about democracy—their fear that the people of the nation could not be trusted to make a wise choice for their chief executive. In truth, it was not so much that the Founding Fathers distrusted the inherent
intelligence
of the people but, rather, that they had a very clear and realistic understanding of the
provincialism
of the American people. They understood that America’s vast landscape, the poor state of its communications, and the diversity of its cultural character and economic interests would make it extremely difficult for any single candidate to gain a majority of the popular vote. How could a voter in Georgia know the merits of a candidate in New York or vice versa? Thus they very quickly cast aside James Wilson’s proposal for direct election of the president as unworkable.

The other obvious solution—election by members of a national Congress whose perspective was likely to be continental rather than provincial—was ultimately rejected because of the problems it created with respect to the doctrine of separation of powers: the president, it was feared, would be overly beholden to, and therefore dependent upon, the Congress for his election. The creation of an electoral college was a middle ground, and while many delegates feared that locally selected presidential electors would be subject to the same sort of provincial thinking as ordinary citizens, they reluctantly came to the conclusion that it was the best they could do while still preserving an adequate separation of power between the executive and legislative branches. It was a highly imperfect solution to a real problem, but in the context of the times, there may well have been no better alternative.

The delegates’ commitment to principles of equality as articulated in the Declaration of Independence was, even in the case of free adult males, a limited one. (For example, most of the delegates supported the imposition of property qualifications for voters in their individual states.) But nowhere were those limitations more obvious than during those instances when the subject of slavery intruded into their deliberations. By 1787 slavery in America was in a state of decline. It remained a significant part of the social and economic fabric in five of the states represented in the Convention, but only two states—South Carolina and Georgia—were inclined to argue for an expansion of America’s “peculiar institution.” Yet the delegates in Philadelphia failed to eradicate that great contradiction to the core values of liberty and equality on which America had declared its independence. Instead, they enshrined the institution of slavery within their new Constitution.

Although neither the word “slave” nor “slavery” is mentioned anywhere in the Constitution, contention over slavery pervaded the debates on the Constitution throughout the whole of the summer of 1787. It was, for example, impossible to discuss questions relating to the apportionment of representation without confronting the fact that the slave population of the South—whether conceived of as residents or property—would affect the calculations for representation. The delegates argued about the proper formula for representing slaves through much of the summer. The final resolution of that issue—a formula by which slaves would be counted as three-fifths of a person in apportioning both representation and taxation—was a purely mechanical and amoral calculation designed to produce harmony among conflicting interests within the Convention. As many disgruntled delegates pointed out, it had little basis either in logic or morality, but in the end, the need for a consensus on the issue, however fragile that consensus might be, outweighed all other considerations.

The debate over the future of the international slave trade was in many respects more depressing than that which culminated in the three-fifths compromise. Only the delegates from South Carolina and Georgia were determined to continue what most other delegates believed to be an iniquitous trade, yet their insistence that the trade continue for at least another twenty years carried the day. However troubled delegates from the other states may have been, their concern for harmony within the Convention was much stronger than their concern for the fate of those Africans whose lives and labor would be sacrificed by the continuation of the slave trade.

Finally, the delegates adopted without dissent a provision requiring that any “Person held to Service or Labour in one State . . . [and] escaping into another, . . . shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” By means of that tortured language, and without mentioning either the word “slaves” or “slavery,” the delegates made a fugitive-slave clause an integral part of our federal compact. It was the one act of the Convention that not only signaled the delegates’ grudging acceptance of slavery but also made the states that had moved either to abolish or gradually eliminate slavery in the aftermath of the Revolution actively complicit in their support of that institution.

On September 12, just five days before the Convention was to adjourn, George Mason of Virginia rose and expressed his wish that the nearly completed draft of the Constitution be “prefaced with a Bill of Rights.” It would, he said, “give great quiet to the people.” Citing as examples the bills of rights in the individual state constitutions, Mason believed that the delegates to the Philadelphia Convention might prepare a bill of rights “in a few hours.”

Mason had good reason to make such a suggestion. As the principal draftsman of the Virginia Declaration of Rights, he believed that bills of rights articulating the fundamental liberties of the citizenry should be part of any proper constitution. And as the delegates to the Convention would discover in the coming months, there were a good many in America—probably a majority of citizens—who shared that belief. But the delegates must have groaned audibly at Mason’s suggestion. Roger Sherman of Connecticut quickly disagreed with Mason, arguing that since there was nothing in the proposed Constitution that was contrary to the provisions in the various state bills of rights, there was no need to duplicate them by adding a bill of rights to it. Mason fought back, insisting that a federal bill of rights guaranteeing that the new government would not encroach on the people’s fundamental liberties—such as freedom of speech, press, and religion, and trial by jury—was essential if those liberties were to be protected. But the delegates turned a deaf ear. When the matter was put to a vote, after a discussion lasting no more than a few moments, not a single state delegation supported Mason’s proposal.

That decision, arrived at hastily and casually, would prove to be one of the most serious mistakes made by the men who drafted the Constitution. When Thomas Jefferson, serving as ambassador to France, received a copy of the completed Constitution from James Madison, he was unable to contain his unhappiness at the absence of a bill of rights. “The omission of a bill of rights, providing clearly and without the aid of sophisms, for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters,” was, Jefferson wrote in dismay to his friend, a grievous error. He believed that a bill of rights was an essential protection “against doing evil, which no government should decline,” and he expressed the hope that a bill of rights would be added to the Constitution without delay.

How could the delegates have ignored the lessons of their revolutionary past and not included a bill of rights in their proposed plan of union? In the months following, as they tried to persuade a skeptical public to endorse the document, supporters of the Constitution would argue that the proposed federal government was primarily concerned “with objects of a general nature,” and that any attempt to replicate the state bills of rights would be not only redundant but also dangerous. “Who will be bold enough,” James Wilson asked, “to undertake to enumerate all the rights of the people?” His fear was that if the enumeration of those rights was not complete, then everything not explicitly mentioned would be presumed not to be a right at all. Madison was equally cavalier, calling the state bills of rights “parchment barriers” that had not served to stop the state governments from invading the rights of their citizens when it suited their purpose.

In fact, these glib rationalizations were probably not the real reasons for the omission of a bill of rights. By mid-September the delegates were profoundly weary of their labors and desperately anxious to return to the comfort of their homes. Although Mason had claimed that “a bill might be prepared in a few hours,” the delegates in the hot, stuffy Assembly Room knew better. It would be a difficult, arduous task filled with contention. And they wanted to go home. They would, however, pay a price for their impatience in the coming months.

As the Convention prepared to adjourn, the delegates were hardly of one mind about the nature of the government they had created. Some, like Madison, had come with the intention of creating a truly supreme, “national” government, but by the end of the summer most delegates were referring to the proposed government as “federal” in its character. In fact, the framers—still fearful of the aggressive, corrosive effects of unrestrained power—tried to strike a balance between the two by creating a government of limited powers that nevertheless had the requisite “energy” to do all the things promised in the preamble: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” A tall order, especially when they were pledging at the same time to create a government that divided power between the states and the nation in such a way as to allay people’s fears of an overbearing central power. As the delegates made their decisions about whether to sign the Constitution on September 17, 1787, there was little common understanding among them about how this new part-national, part-federal conception of federalism would actually work in practice, but they had at least made a start in creating a framework within which issues of state and national power could be negotiated.

Similarly, most of the framers understood that it was necessary to invigorate executive power, but at the same time they wished to avoid at all costs creating anything that resembled the unchecked power of the British king. By rendering the selection of the president independent of the legislature and by giving that president a limited veto power over congressional legislation, the framers were on the whole remarkably successful in both invigorating and containing executive power. Successive generations have debated where the balance point between invigoration and containment should rest, but the framers were relatively successful in setting the general parameters for that debate.

The framers’ greatest failure occurred in the area of slavery and race. It is perhaps unrealistic to expect these eighteenth-century men to have moved decisively against the institution of slavery, but they failed to seize the opportunity to take even minimal steps that might have eased the way toward the ultimate abolition of slavery. By creating a process by which the Constitution could be amended, they did provide for a way in which their initial mistakes could be corrected, but since the Constitution required the approval of three-quarters of the states for any amendment to take effect, those states that had a vested interest in keeping the institution of slavery in place had an effective veto power over anything that might substantially threaten it. It would take a bloody, ghastly civil war and the loss of six hundred thousand American lives to effect the kind of constitutional change that would eliminate the most fundamental paradox at the nation’s core.

ON THAT FINAL DAY OF THE CONSTITUTIONAL Convention, it was left to the Convention’s oldest delegate, eighty-one-year-old Benjamin Franklin, to sum up the nearly four months of debate, disagreement, and occasional outbursts of ill temper that had marked the proceedings of that summer. Franklin observed that whenever “you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” The wonder of it all, Franklin asserted, was that the delegates had managed to create a system of government “approaching so near to perfection as it does.”

Franklin acknowledged that there were “several parts of this Constitution which I do not at present approve,” but, he added, “the older I grow the more apt I am to doubt my own judgment and pay more respect to the judgment of others.” Franklin concluded by asking each of his fellow delegates to “doubt a little of his own infallibility” and step forward to sign the Constitution. In that spirit of humility, thirty-nine of the forty-two delegates present on that last day would take that important step forward and, in the process, move America one step forward in achieving a “more perfect Union.”