Simplified Articles of Conferation

Congress and the Lack of Authority

1787-1788 Timeline

Day 1

Bellwork: What were some of the problems with the Articles of Confederation? Look at your grade on PowerSchool and make a list of things you need to do to improve it.

THE ROAD TO THE CONVENTION

Before we turn to the Convention itself, it’s important first to review why the founding generation thought that we needed a new Constitution in the first place.

It’s important to remember that when the Constitutional Convention met in Philadelphia in 1787, our nation already had a framework of government—the Articles of Confederation. The Constitutional Convention itself was—in many ways—a response to the weaknesses of this form of government.

Articles of Confederation

The One Thing to Remember about the Articles of Confederation: The Articles created a weak central government—a “league of friendship”—one that largely preserved state sovereignty (and independence).

The Articles created a national government centered on the legislative branch, which was comprised of a single house. There was no separate executive branch or judicial branch. Each state was entitled to between two and seven delegates, and the delegates themselves voted by state—with each state receiving one vote.

The powers of the national government were limited.

The national government didn’t have the power to tax or regulate commerce between the states.
It couldn’t force states to provide troops or send the government money.
Any proposed amendment to the Articles required unanimous approval from all thirteen states. As a result, no amendment was ever ratified.
Congress couldn’t exercise the powers that it did have without support from nine of the thirteen states. This supermajority requirement that made it difficult for the national government to govern. These limits created several problems for the young nation.
Without the power to tax, Congress struggled to fund that national government. It depended on voluntary contributions from state governments, and many states simply refused to pay their fair share.
The national government struggled to defend the frontier.
Many states raised trade barriers against one another—imposing taxes on one another’s goods, spurring unhealthy competition between the states, and harming the new nation’s economy. Congress was powerless to stop this.

Revolutionary-era State Governments

The Constitutional Convention was also a response to the nation’s experience with revolutionary-era state governments.

In the years between the Declaration of Independence in 1776 and the adoption of the Constitution in 1789, the United States was governed primarily by thirteen separate governments.

These state constitutions created governments led by a strong legislature—responsive to each state’s voters— and a weak executive branch and judiciary.
These state governments pushed laws to relieve debtors (those who owed money)—undercutting their creditors (those who leant them money).
As we just discussed, these governments also set up trade barriers to protect their own businesses from competing with businesses from other states.

As a result, the American economy cratered—with many leaders blaming the downturn on the economic policiesadvanced by the states’ democratically elected legislatures.

With the new Constitution, the Framers were looking, in part, to respond to—what they perceived to be—the evils perpetrated by powerful, democratic state legislatures.

Shays’ Rebellion

Finally, there was Shays’ Rebellion. The economic situation grew dire by 1786. Businesses were failing, trade suffered, and under the Article of Confederation, the national government could do little to help.

In late 1786, farmers in Western Massachusetts—facing high land taxes (and growing debt) and feeling that theeconomic (and governing) class in Boston didn’t represent them—took matters into their own hands.

Under the leadership of Daniel Shays—a thirty-nine-year-old farmer who had fought in the American Revolution, including at Lexington and Bunker Hill—the farmers organized themselves into an armed fighting force and marched through the western part of the state.

The farmers seized control of court buildings—preventing the state government from taking possession of their farms.
They forced debtors’ prisons to close.
And they attempted to commandeer the arsenal at Springfield, Massachusetts. (Their plan was to march to Boston and confront the Massachusetts government.)

Under the Articles of Confederation, the national government struggled to raise an army. The state militia eventually put down the rebellion.

For many in the Founding generation—including George Washington, Alexander Hamilton, James Wilson, and James Madison—Shays’ Rebellion was proof that the Articles were too weak to govern the country.

Revising the Articles

Eventually, these key leaders concluded that the nation needed to hold a new convention—one that might work to propose a strong national government, whether through revisions to the Articles of Confederation or even through a new Constitution.

On February 21, 1787, the Confederation Congress agreed to call for a convention of state delegates to meet in Philadelphia for the “sole and express purpose of revising the Articles.”

Day 2

THE CONSTITUTIONAL CONVENTION

Some background on the Convention itself:

The Constitution was drafted in secret at the Constitutional Convention in Philadelphia between May 14, 1787 and September 17, 1787.
The Convention met at the Pennsylvania State House (now known as Independence Hall).
On the final day of the Convention, three delegates—Elbridge Gerry, George Mason, and Edmund Randolph-refused to sign the Constitution. (Others like Luther Martin left the Convention early.)
The delegates were nominated and appointed by their respective state legislatures.
Delegations each had one vote per state.
Twelve of the thirteen states were represented. (Rhode Island—fearing a strong national government—sent no delegates and therefore had no vote at the Convention.)
The average age of the delegates in the room was forty-two, and most of the delegates were lawyers.
George Washington was elected the President of the Convention.
Several important Americans weren’t there: Thomas Jefferson and John Adams were both abroad—Jefferson was in France, and Adams was in England. John Hancock was Governor of Massachusetts. Richard Henry Lee and Patrick Henry refused to attend.

The Constitution was ratified on June 21, 1788, and went into effect with the first meeting of Congress on March 4, 1789.

Let’s focus on some of the Convention’s key compromises—namely, the Connecticut Compromise, the Electoral College, the Three-Fifths Compromise, and the Slave Trade Clause.

Constitutional Convention Graphic Organizer

Virginia Plan

New Jersey Plan

Connecticut Compromise

https://www.youtube.com/watch?v=kCCmuftyj8A&t=175s

Day 3

THE ELECTORAL COLLEGE

Let’s turn from Congress to the Presidency—focusing on the compromises that led to our method for selecting a president, the Electoral College. So, what’s the Electoral College?

Today, many democratic nations elect their executives by direct popular vote. We don’t. Instead, we use a system known as the “Electoral College.” How does it work?

Today, the Electoral College is made up of 538 electors drawn from the states and the District of Columbia.

Under Article II of the Constitution, the states are given a number of electors equal to their congressional delegation and the Twenty-Third Amendment granted Washington, D.C., its three electoral votes.

Today, the American people vote for president and vice president on the Election Day. But these votes don’t directly determine the outcome of the election. Technically, these popular votes determine which electors will be appointed to the Electoral College from each state. The electors eventually meet in December to cast their votes for President and Vice President. If a candidate receives a majority of these votes in the Electoral College, she wins—even if she lost the popular vote.

So, how did we end up with this system? It’s a very interesting story. To understand the debate over the Electoral College, it’s important first to understand a bit about the framers’ debates over the Presidency itself.

It’s fair to say that the framers struggled with how to structure the presidency. This was driven, in part, by the lack of historical examples to follow.

When the framers looked to antiquity—and to the difference between the Roman Republic and the Empire— they saw the failure of past republics and that past political structures hadn’t addressed the problem of executive power.
When the Framers looked to Europe, they saw powerful kings.
When they looked to their own state constitutions, they saw executives too weak to govern effectively. (Some states (PA) had executive counsels and no single president/unitary executive.)
When they looked to their own Congress under the existing Article of Confederation, they saw a body inadequate to the executive tasks necessary to shepherd a young (but growing) nation down its path towards greatness.

At the same time, the framers feared executive power. They remembered the abuses of King George III and his officials in colonial America—abuses that helped lead to the American Revolution.

Turning to the Convention itself, the framers as a whole had a range of opinions when it came to the new Executive.

On one end of the spectrum, Alexander Hamilton and John Dickinson voiced admiration for the limited monarchy of Great Britain—and a single, strong national executive.
On the other end of the spectrum, Roger Sherman viewed the Executive as “nothing more than an institution for carrying the will of the Legislature into effect.”

In the end, the debate over the Electoral College was closely connected to these broader debates over the presidency itself. (And James Wilson played a key role throughout these debates.) Over time, they wrestled with four big issues:

How to elect the president.
How long the president’s term should be.
Whether the president should be allowed to run for reelection.
And the question of impeachment and removal.

And the framers repeatedly learned that a decision taken on one of these issues would affect what they thought about all of the others.

So, how did we get the Electoral College?

The Electoral College was a compromise—between those like James Wilson who wanted the direct popular election of the president and those who supported other presidential selection systems.

Over time, the Framers debated a range of ways to select the president, including direct election by popular vote (Wilson’s preference), by Members of Congress (the preference of many Framers—especially Southern slaveholding delegates like Pierce Butler), by electors selected by lottery (Wilson’s radical suggestion), or by an electoral college (a compromise).

For much of the Convention, the election of the president seemed like an unsolvable problem. Each idea had its own problems.

Election by Congress had the advantage of placing the decision in the hands of some of the nation’s most knowledgeable leaders. However, the concern was, as Gouverneur Morris warned, that the result would eventually be the “work of intrigue, of cabal, and of faction,” producing a president who would become a mere tool of his supporters in Congress.
Election by popular vote—proposed by Wilson (and supported, at various times, by Morris and Madison)—had the advantage of rooting the presidency in popular sovereignty.
- Some framers opposed this idea based on sheer elitism.
- However, others (like George Mason) didn’t so much fear that the American people would be easily duped by demagogues, but instead were concerned that the size of the country would make it difficult to carry out a national election—and for the average voter to know anything about an out-of-state candidates’ record. (In other words, everyone would know (and love) Washington. But in the future, there probably wouldn’t be many (or any) other Washingtons.) For delegates like Mason, it wasn’t a question of competence, but one of information. (The United States was a larger republic than any ever built. Many citizens were on the frontier, spread out in the country. Information at the time spread slowly and usually to cities first. Many rural areas didn’t have newspapers. Therefore, the concern would be that these voters would rely on bad information, and this might lead them susceptible to manipulation—especially by demagogues.)
The third—and final—key idea was the Electoral College.
- The key advantage of this proposal was that it would keep the president independent of the legislature.
- He would have his own independent base of support that would dissolve after the election.
- Key disadvantages were the logistics of how to get the Electors to meet and the related expenses.
- Some framers also feared whether they’d be able to attract Electors “of the 1st or even the 2d grade inthe States.”

The framers settled on the Electoral College in the closing weeks of the Convention, and they supported it for a range of reasons.

For James Wilson—who supported the popular election of the president—the Electoral College was a second (or third) best option.
For those who shared some of Wilson’s support for popular democracy, but also shared some of the concerns of the other framers about its dangers (and limits), the Electoral College offered a balance between popular input, congressional (and elite) input, and federalism.
For those who supported congressional election, the Electoral College would still have the U.S. House—voting by state, not by individual Members—decide the president among the top vote-getters if no candidate received a majority in the Electoral College. And many framers assumed that—after Washington—many elections would go to the House. (In other words, that no candidate would have a big enough national reputation to secure a majority of the electoral vote.) As Mason put it, the electors would fail to generate a winner “nineteen times in twenty.”
For some slaveholding delegates, the Electoral College represented a way of boosting their power over presidential selection—with the Constitution counting enslaved persons as three-fifths of a person for purposes of congressional representation and, in turn, for determining the voting power in the Electoral College.
And, finally, for some founders like Alexander Hamilton (and as he argued in Federalist No. 68), the Electoral College represented a way of guarding against dangerous demagogues and leaving the presidential election, ultimately, to the votes of national elites serving in the Electoral College.
- Hamilton and some of his fellow Federalists argued in support of the Electoral College as an anti- democratic institution.
- On this view, it would limit the excesses of democracy.
- This theory had its roots both in experiences like Shay’s Rebellion, but also in antiquity (and Aristotle’s theory of why democracies fell to corruption and demagoguery). Hamilton: “Men chosen by the people for the special purpose” of selecting the President “will be most likely to possess the information and discernment requisite to such complicated investigations.”

THE DEBATES OVER SLAVERY

Let’s end with one of the most controversial (and troubling) aspects of the Convention—the delegates’ compromises over slavery.

Slavery is obviously older than the U.S. Constitution. Slavery itself was written into colonial law as early as the 1660s in places like Virginia and the Carolinas. The British Empire secured a monopoly over the slave trade in 1713, and in the 1700s, American slavery expanded.

To give just the example of Virginia—enslaved people grew from just 7% of the population in 1680 to 28% in 1700 and, finally, to a whopping 46% (nearly half of the Virginia population) in 1750. So, well before the Constitutional Convention, slavery became a massive part of the Southern population—and white Southern wealth.

Let’s fast forward to 1787 and return to the Constitutional Convention in Philadelphia. What role did slavery play there? First, a quick backstory on the push towards emancipation—the end of slavery— in the North.

Throughout the colonial period, slavery wasn’t only a Southern phenomenon. There were enslaved people in the North—in some places, for instance, New York, there were many of them. However, during the 1780s, many Northern states took steps towards ending slavery.

Vermont ended slavery in their 1777 constitution. A state supreme court decision ended slavery in Massachusetts in 1783. Pennsylvania passed a gradual emancipation bill in 1780—followed by Rhode Island and Connecticut in 1784. (These bills gradually freed the children of currently enslaved people in later years.)

But some Northern states—those with a greater number of enslaved people like New York and New Jersey—were more reluctant to act. (Acts in 1799 and 1804, respectively.)

All told, 25 of the Convention delegates held enslaved people, and slavery was critical to many of these delegates’ wealth—and to the economies of their home states.

At the Constitutional Convention, the framers refused to recognize the right of property in men. However, they did compromise over the issue of slavery, enshrining protections for slaveholders in the Constitution.

(Broadly, the reason for compromise—the biggest goal was a strong national union and government. For some Northern states, that means securing economic power. But South Carolina and Georgia—among others—wouldn’t agree to a Union without protections for slavery.)

Three-Fifths Clause

Text of the Constitution:

The “Three-fifths Clause,” Article I, Sect. II, Cl. 3

“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.”

As we discussed earlier, the U.S. House of Representatives draws up districts based on a state’s population—the larger the state, the greater the number of districts it gets. And the greater the number of districts for each state—and for each region of the country (North v. South)—the greater the political power.

The key question in the debate over the Three-Fifths Clause was how to count enslaved people as part of this process.

The delegates borrowed language from a proposed 1784 amendment to the Articles of Confederation. It counted enslaved people as 3/5 of a person. But this clause was debated multiple times during the Convention—as the delegates struggled over how best to structure Congress.

At the Convention, pro-slavery Southerners argued that enslaved people should count as a full person—5/5s, but anti- slavery Northerners shouted hypocrisy. How could the Southern delegates treat enslaved people as full persons for purposes of representation in the national government but at the same time deny their humanity by treating them as property?

For instance, Massachusetts delegate Elbridge Gerry asked how enslaved people who were property in the South could be counted as persons any more than “the cattle and horses of the North.”

New York delegate Gouvernour Morris called slavery a “nefarious institution— . . . the curse of heaven on the states where it prevailed.” Morris then attacked the Three-Fifths Clause for giving “the inhabitant of Georgia and South Carolina who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages, . . . more votes in a government instituted for the protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey who views with a laudable horror so nefarious a practice.”

The Convention rejected Southern attempts to count enslaved people as a full person, and Northern attempts to exclude them from the count altogether.

Ultimately, Roger Sherman of Connecticut secured support for the Three-Fifth Clause. (The Southern delegates were unhappy that Northern reps would have a 36-29 advantage in the House, but they accepted the compromise as a key protection against future Northern attempts to limit slavery.)

Of course, the Framers avoided using the word “slave” in the clause.

This clause had a huge impact over time.

While the delegates didn’t spend much time discussing slavery when debating how to elect the president, the lower South preferred a system in which Congress—where they might have an advantage due to the Three-Fifths Clause— would elect the president, while Northerners like James Wilson preferred popular election. The Electoral College ultimately gave the slaveholding states a similar advantage.

The Three-Fifths Clause increased pro-slavery strength in Congress (by counting enslaved people as 3/5 of a person), in the presidency (through the Electoral College), and at the Supreme Court (through electing pro-slavery presidents, who appoint those justices).

Slave Trade Clause

Text of the Constitution:

Slave Trade Clause: Article 1, Section 9, Clause I:

“Congress is limited, expressly, from banning the “Importation” of slaves, before 1808: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

By the founding, even many slaveholders opposed the inhumane Atlantic slave trade. Only delegates from South Carolina and Georgia were determined to continue this brutal trade.

This issue led to heated debates at the Convention. For instance, George Mason—himself a major slaveholder—used powerful language to capture the harm of slavery to the American character, which “produce[s] the most pernicious effect on manners” among the slaveholders by making every one of them a “petty tyrant.”

Mason, John Dickinson, and Rufus King proposed an outright ban on the Atlantic slave trade, but the delegates rejected it. Instead, to the annoyance of Morris and Madison and others, the Convention reached a compromise over the slave trade. Congress could ban the slave trade, but only twenty years after the ratification of the Constitution—January 1, 1808.

In other words, this clause protected the brutal slave trade until 1808.

And between 1788 and 1808, the number of African slaves imported into the United States exceeded 200,000—only roughly 50,000 fewer than the total number of slaves imported to American in the previous 170 years. At that point, Congress had the power to abolish it, and so it did.

In the end, the anti-slavery Northern delegates wanted to block the expansion of slavery and did not want to write explicit protection for slavery—recognition of the so-called “right of property in man”—into the Constitution.

However, they were also open to protecting the existing property rights of the slaveholders and were willing to compromise with Southern slaveholders in order to form a new Union, ratify the Constitution, and create a new national government stronger than the government under the Articles of Confederation.

At the same time, Southern slaveholders fought to build in protections against future anti-slavery Northerners’ attempts to restrict (and even abolish) slavery.