23. Creating a Constitution
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23. Creating a Constitution

Prof: Before we begin,
I have to make a true confession to you,
my class, because you’re my class, and I have been
confessing things all semester but this is–
I basically set myself up for this failure and then realized–
at the end of the class someone came up to me and asked me a
question, and then I realized–Gaa! Okay.
So remember how I told you how
at UVA for five straight years I forgot Thomas Jefferson’s
birthday, even though everything closed?
Guess what I didn’t say on
Tuesday? I forgot it was Thomas
Jefferson’s birthday. [laughter] I completely forgot.
Someone came up at the end and
said, “Well, in honor of
Jefferson’s birthday we did the following”–
and I was like [laughs]. So it’s good to know that I’m
really consistently a horrible UVA grad [laughter]
who always forgets Thomas Jefferson’s birthday.
It must be a Hamiltonian mental
block [laughter] that I–it is not possible for
me to keep that date in my head. Anyway, I at least wanted to
say, happy birthday, Thomas Jefferson.
So now, officially,
I’m a little late, but he’ll get over it–so
anyway [laughter] I’ve confessed to you.
I feel much better now.
So today we turn to the
Constitution. In the last few lectures and in
today’s lecture basically we’ve been looking at the new nation
figure out its shape and form, right?–what kind of a nation
is this going to be. As people were discovering
throughout the 1780s, it was one thing to protest
against things that you didn’t like in a government,
as the Americans had during the Revolution.
It was quite another thing to
come up with an alternative, to come up with something
better and then to get others to agree.
Today’s lecture,
I’m sorry–Tuesday’s lecture discussed part of this process
of figuring out the shape and form of the new nation.
So we looked at the Mount
Vernon Conference, we looked at the Annapolis
Convention, and we–in doing that,
we’re looking at a gradual process that was unfolding one
step at a time with no inevitable outcome.
So basically,
what we saw on Tuesday was how the Americans were basically
backing their way into what would become the Constitutional
Convention. So it’s not as though everyone
said, “Hey, we need a new constitution and
it’s got to be stronger. Let’s go.” Right?
They’re–It’s a process at
which people are really figuring things out as they go.
And today I want to stress that
same message: that the Constitution was not
inevitable. And I know that’s obvious on
the one hand, but on the other hand,
it’s so ingrained in us, I think, to think that it’s a
great idea that of course would happen sooner or later,
that I feel the need at the outset of the lecture to say
this, that obviously it was not
inevitable. We think to ourselves:
well, of course the Articles–what a goofy
government the Articles of Confederation was;
of course they’ve got to come up with something better;
of course it’s going to be stronger;
of course it’s going to end up looking like our Constitution.
And obviously the problem with
that whole river of “of courses”
is that if you travel down that stream you miss one of the most
important aspects of the process of creating the Constitution,
and that is that it was a process, that it was a debate.
It was a national debate during
which people really seriously considered what they were doing,
what the implications were of what they were doing,
and they did not all agree on what was a good or bad idea.
So the process,
the fact that there actually was a debate,
is significant. And it’s not a process that was
entirely disconnected from the Revolution.
The things that Americans had
been yelling about during the Revolution–right?–they talked
in a variety of different ways about liberties;
they talked in a variety of different ways about
rights–that wasn’t just rhetoric.
People were truly arguing about
and defending specific fundamental rights and
privileges that they felt they deserved as British subjects,
and of course the end result about that fight was the
Revolution. So now we’re years later,
and we’re looking at arguments over a new form of government,
and some of these same things are being yelled about.
So, as you’re going to see in
the course of today’s lecture, in one way or another people
are still fretting about sort of what they consider to be
fundamental liberties, basic rights.
People considered these things
to be the legacy of the Revolution and they didn’t want
to give them away before they’d even really begun to enjoy them.
So think back for a
minute–many moons ago; it’s so long ago in the
semester–but think back to when we were talking about the vote
for independence, and I mentioned Pauline Maier’s
book. And I talked about how in her
book she has a chapter in which she talks about the other
declarations of independence, and she really shows how on a
local level people were getting together and debating as groups
in towns, in counties:
what do you think about independence and should we
actually support this?– that that was actually a real
debate. And what I’m talking about
here, what I will be talking about over the course of this
lecture, it’s a similar process of
debate in which people throughout the country were
really trying to figure something out.
They knew it was a major
decision. They were hoping whatever was
going to happen was going to be a smart decision,
but it’s an actual debate. And along these lines,
as you’ll see by the end of today’s lecture,
this is not the kind of lecture in which I’m going to give you
this deep textual analysis of the Constitution.
Basically, I’ve got this
lecture and a little bit of the next lecture to talk about the
Constitution. I’m sure the Founders are
spinning in their graves like: “what,
forty-five minutes to give to the Constitution?”–
but that’s where we are in the semester.
Given that I only have that
amount of time, what I really want to focus on
is the process of creating the Constitution,
and in doing that I’m also going to talk about a handful of
ongoing controversies that we have seen before during the
Revolution in an earlier part of this course,
and we’re going to see them again toward the end of this
lecture when we focus on some of the main areas that became
controversies for the Constitutional Convention.
Now I think in the same way
that we have all these “of courses”–
of course we know what’s going to happen,
it’s the Constitution–I think it’s also easy for us to walk
down the “of course” trail when we think about
nationalists like James Madison or Alexander Hamilton.
On some sort of basic level,
we assume well, they’re right,
right? They’re the smart guys;
they’re right, and anyone who is against them
is sort of a shortsighted, limited-minded person who
clearly isn’t thinking on a broad, smart level.
I think almost instinctively
because we think what we think about our Constitution,
we think that way about whoever supported it or did not.
Now certainly,
these nationalists felt like they were vindicating the
Revolution, right? So if you’d asked them,
they would have told you that they felt they were preserving
the achievements of the Revolution;
they were fending off chaos and a variety of other things that
would defeat what had been won in the Revolution.
And from our vantage point,
we can look back, we see that,
and that makes sense, but this wasn’t the only
argument that was circulating at the time.
So even before the
Constitutional Convention met, people had valid fears about
what might result from it, and they were fears that were
strong enough that some people didn’t even think their states
should participate in the Convention.
Never mind arguing about
ratification. I’m backing us way up.
There were many people who just
thought: ‘I don’t want to–I don’t think our state should
participate in this whole idea of revising the government.’
In some way or another,
some people feared that strengthening the national
government was a kind of counterattack against everything
that the Revolution had meant. And I want to give you a sense
of the flavor of this debate, this actually sort of
pre-Convention debate in which the states are figuring out what
to do, and I’m going local again.
I sort of–To give you a sense
of on-the-ground reality during the Revolution,
I went local when I talked about the invasion of New Haven.
So for just a couple minutes
here I want to go local again and just give you a flavor of
the debate that was going on here in Connecticut after the
Confederation Congress had passed a resolution saying:
okay, we think that the states should
select delegates to send them to this Convention that’s going to
happen to revise the articles. Right?
They’re not saying,
‘Go destroy the Articles’–but they are saying,
‘Okay. Revising the Articles might be
okay’–and once the Confederation Congress makes
that resolution, the states now debate what to
do. So on May 12,1787,
the Connecticut legislature began debating whether
Connecticut should send delegates to this proposed
Convention to meet in Philadelphia that was coming up
in a couple of– was coming up very soon as a
matter of fact. Now most newspapers that
reported on what happened explicitly mentioned four
members of the Connecticut House who came forward and declared
that they were opposed to sending delegates to the
Convention. All of these men were from
small towns near the Massachusetts border.
And all of them in one way or
another warned that sending a delegate to this Convention
would endanger the liberties and privileges of Americans.
So Elijah Fitch–I love the
fact that their names are preserved–
Elijah Fitch said the Convention might end up
abridging the people’s privileges by creating some kind
of a big, unjust, centralized government
that just wouldn’t consider the individual person at all.
Daniel Perkins said that the
men who probably would be named as delegates to this supposed
Convention would probably be a bunch of rich,
aristocratic-type men who wouldn’t understand or care
about the problems of the average person in Connecticut,
never mind the poor of Connecticut.
So Perkins thought,
whatever comes out of this Convention is bound to just ruin
the poor; it’s going to be some weird,
aristocratic decision. Hosea Humphrey said that the
Convention would probably somehow or other take away the
rights of Connecticut to protest against things,
to veto things; somehow or other it’s going to
be more centralized, so Connecticut is going to lose
power in this equation. And the fourth representative,
named Abraham Granger, was particularly
straightforward. He said, he knew that his
constituents didn’t want delegates to be sent to this
Convention and he represented them, so first of all,
there it was. He had no choice;
he had to just do what they wanted him to do and say,
‘No, we should not send delegates to the Convention,’
but he added, he agreed with them.
He actually thought that this
Convention was a bad idea, and he stated specifically,
the reason why he didn’t like the whole idea of a Convention
was probably it would end up creating a monarchy,
and then we’d be right back to where we were before.
So all of these men,
either directly or by implication,
clearly they’re rejecting the idea that the Union or
Connecticut is in such horrible shape that something must be
done; we need a new government.
They’re not traveling down that
trail. Granger actually in the course
of his remarks explicitly said that the Confederation Congress
had plenty of power; the Articles of Confederation
joined with Connecticut’s own constitution would be just fine
for the people of Connecticut. Implied in some of the comments
of what these men said is the idea that anything could happen
at this Convention, and obviously that’s something
I’ve talked about before in this course as well,
but you can hear it underlying a lot of their comments.
Who knows what’s going to come
out of this Convention? Anything could happen and odds
are whatever happens, some fundamental American
privileges and rights are going to be taken away,
potentially by a bunch of wealthy, aristocratic guys who
are going to be the ones standing in that room in
Philadelphia debating. So they’re basically imagining
the Convention’s going to be a bunch of aristocrats who are
going to subvert a popular revolution and maybe even just
toss the new country right back into a monarchical form of
government. So those are the four people
who at least the newspapers noted as really standing forth
against the Convention. Now of course,
the newspapers also reported on nine men who spoke in favor of
attending the Convention. All of them were from
commercial areas. They all argued,
as you would expect them to argue,
that the well-being of the Union and the well-being of the
state of Connecticut really, really required a stronger
central government. One of these nine even brought
up an embarrassing example of how powerless the Congress was
that involved Connecticut. He said, ‘You know,
recently, the Confederation Congress asked the states,
including Connecticut, that they requisition money
from us, and we just decided we didn’t
feel like giving them any, and they couldn’t do anything.
They asked us for something and we said no and that was the end
of that. Remember, guys?
Oh, that’s like a sign;
they don’t have power because we watched them not have power
when we just said no.’ And he–this one delegate went
on to say, ‘Well, what about–Think about it.
That’s not even a problem.
What about problems to come?
What if the Union begins to
disintegrate? What if the Union is invaded?
What would the Confederation
Congress be able to do about problems like that?’
So obviously in the end,
it’s that kind of an argument that wins out and Connecticut
voted to send delegates to the Convention,
but obviously also not without a real debate.
So even participating in the
Convention was a big deal that required serious debate,
and we haven’t even gotten to ratification yet.
As a matter of fact,
it was such a big deal that one state,
the state of Rhode Island–Rhode Island is
consistent throughout my entire class–
Rhode Island decided not to attend.
They actually just decided:
no, we’re not participating, we’re not going.
So there were actually only
twelve states represented at the Constitutional Convention.
Rhode Island was a holdout.
So clearly, so serious that one
state is just not there. So ultimately twelve states
sent delegates to the Federal Convention.
And I should add here,
just to not confuse you, sometimes I know I’m saying
Federal Convention and sometimes I’m saying Constitutional
Convention, and they’re two ways of
referring to the same thing. Some historians say Federal
Convention because if you think about it,
every state could have a constitutional convention but
there can actually be maybe, hopefully one Federal
Convention, but you can use either one.
You have my full permission to
call it either the Constitutional Convention or the
Federal Convention. So twelve states sent delegates
to the Federal Convention. It met between May and
September of 1787. Rhode Island obviously,
as I said, was not there. From those twelve states,
fifty-five delegates attended the Convention in all.
And I suppose,
as you might expect, overall they were well-educated
men. A lot of them were trained as
lawyers. A lot of them had experience
working in their state governments.
A good number of them had
experience serving in either the Continental Congresses or the
Confederation Congress. Now that said,
this doesn’t mean that these were sort of professional
politicians sitting down to write a constitution.
It’s not as though they’ve
prepared their lives for this moment.
They’re people who’ve been
involved in public life but they certainly have not been training
to sit down and create an entire constitution for a whole
country, so despite that experience,
which I’m sure served them well,
it does not suggest that they actually are just ready to go.
They’re not entirely sure
what’s going to happen. Now in some ways,
these delegates were kind of a self-selecting group,
because people who were really dead set against the idea of
strengthening the national government basically just didn’t
go to the Convention. The problem with that strategy
is–on the part of certainly the people who didn’t like this
whole idea– by not being there,
they made it easy to achieve a consensus among the people who
were there who were a little more comfortable with
strengthening the national government.
Most of the people who were
there in one way or another ended up being nationalists in
some form, and by nationalists I actually
don’t just mean the James Madisons of the world.
There’s a pretty wide spectrum
of people thinking about the fact that the national
government needs to be stronger and some of them,
Hamilton, Madison, extremo nationalists,
others not so much–there’s a pretty wide range–
and there were some people at the Convention who weren’t even
necessarily comfortable with a great amount of increased
strength and did not end up signing the Constitution.
So I’m not saying everyone
there is a firm nationalist. But the really firm,
I suppose you’d call them at this moment anti-nationalists,
didn’t go for the most part. So since they were not there,
it meant that there was a certain sort of fundamental
level of agreement at the Convention.
Now two of the delegates there
were particularly well known, and to people who were
wondering what the heck was going on in Philadelphia,
the presence of these two men made a big difference.
George Washington.
George Washington was there.
George Washington ended up
presiding over the Convention, which ended up being a pretty
important move. I’ve already talked in past
lectures about how he gained the trust of everybody by
continually surrendering power, so he’s already a legend in his
time, but also he’s a trusted leader.
So certainly having him there
gave a certain status to whatever was going on,
meant that it was important, and meant that it was something
that was being treated responsibly because George
Washington had invested it with his presence.
Benjamin Franklin also attended.
Again he’s another man in this
period that–an American who had an international reputation.
I’ve talked a little bit about
him as well, and like Washington his
presence there suggested that whatever the heck was going on
in Philadelphia, it was important and it had
some major support. The fact that these two men
were there was significant. This is not the reason why he
was there, but I also am always happy when
anyone is anywhere who has a sense of humor,
so Franklin had one, and it’s always good to have
the guy with a sense of humor at any large meeting of men who
have important things to say. So for that reason I personally
am happy that Benjamin Franklin was there.
Now as I suggested on Tuesday,
Madison also played a major role,
and I talked at the end of Tuesday’s lecture about his
amazing notes that he recorded partly thinking ahead to
posterity. His notes ended up being even
more significant because it was agreed at the start of the
Convention that its proceedings would be kept entirely secret.
The logic of that being that if
it was really, really kept entirely secret,
the people who were there would feel free to really speak their
minds. They really wanted an open,
full, honest debate, so if people there really
believed that the public would not know what they were saying,
someone for example might feel free to stand up and say,
‘I personally would like a monarchy.’
If people thought the public
was watching, no one’s going to utter the
“m”-word at the Constitutional Convention,
but if it’s really secret, the idea was it would allow for
much more open and free and potentially useful debate.
And there’s actually–I can’t
resist. There’s actually a story about
the secrecy of the Federal Convention which I will offer
you because it’s also a George Washington–
yet another George Washington story.
I can’t resist it.
And it’s actually–it really is
a way of showing how important people at the time considered
the idea of keeping the Convention secret.
And it’s from the notes of a
delegate who was there at the convention and his name is
William Pierce. And supposedly at some point in
the Convention, somebody found a page of notes
about the proceedings on the floor of the state house and
brought this up to George Washington and said,
“Somebody lost these.” Okay.
So Washington takes the lost
notes and at the end of that day’s session he stands up and
he says, “Before we adjourn–”
I’ll read his precise words: “Gentlemen,
I am sorry to find that some one Member of this Body has been
so neglectful of the secrets of the Convention as to drop in the
State House a copy of their proceedings,
which by accident was picked up and delivered to me this
Morning. I must entreat Gentlemen to be
more careful, lest our premature speculations
disturb the public repose by getting into the newspapers.
I know not whose paper it
is,” and then he said “but
there it is,” and he sort of threw it down on
the table and added, “Let him who owns it take
it.” And according to Pierce,
he bowed, picked up his hat and left the room,
quote, “with a dignity so severe that every Person seemed
alarmed.” Okay, the power of George.
He just sort of threw his
weight around and everyone’s like: uh oh.
So Pierce writes that
immediately everyone started checking their pockets and their
notes, like: ‘I really hope those are not my notes;
please don’t be my notes.’ Pierce says to his horror he
discovered that his were lost, so he kind of goes up to the
front of the room, and he kind of peeks at the
notes and he’s really relieved to discover: they’re not mine.
That means that his notes are
lost; [laughter]
that means two people’s notes are lost.
And Pierce then later says that
he remembered, oh, yeah, I left them in my
coat pocket in the boarding house where I’m staying–
and he found them and got them and hopefully everything was
okay. But I love the fact that he’s
really relieved like: oh, good, at least those aren’t
my notes; they’re someone else’s really
lost notes. And according to Pierce,
Washington’s reprimand was so off-putting that nobody ever
claimed the piece of paper. [laughter]
It will just stay there, [laughs]
the scary piece of paper. So obviously Madison’s notes
are important also partly because this was very secret,
but of course, as I hinted at the very end of
Tuesday’s lecture, what’s particularly significant
about Madison’s role in the Convention is his creation of a
plan of government which ultimately is known as the
Virginia Plan. Madison arrived at the
Convention with a plan of government in hand,
so in a sense he immediately set the terms of debate.
It was a really strategic
move–and I’ll add at this point that when you go off in to the
future and have wonderful jobs that in one way or another will
require you to have committee meetings of various sorts,
the little lesson, the life lesson that James
Madison teaches us here is, if you set the agenda of the
meeting, you set the terms of debate and
you make it much more likely that you win.
So remember James Madison down
the road in your professional lives.
He really does something very
brilliant strategically by walking in and regardless of
what is going to happen– he doesn’t know what’s going to
happen, but he literally at least
started out by setting the terms of debate.
Now he may have devised this
plan of government, but given that people already
knew he was sort of an extreme nationalist,
he wisely decided he would not stand up and present this plan
himself, thinking–and probably rightly
so–that if he stood up and made a recommendation,
some people would immediately distrust it as coming from some
kind of an extreme nationalist. So instead, he asked fellow
Virginia delegate Edmund Randolph to present the plan.
And Randolph was popular and
Randolph was influential and unlike Madison Randolph was also
a good public speaker so it was a wise choice.
So on May 29,
just a few days after the Convention opened,
Randolph stood up and very diplomatically and very gently
opened the subject of altering the Articles of Confederation.
Though, as you’re about to see,
what he ends up suggesting is not altering the Articles.
So first he reviewed the
weaknesses of the Articles, and then he proposed a series
of resolutions, the first one intended to just
calm the nervous down and sort of put people off guard:
nothing scary is happening here.
So he first says,
“Resolved, that the Articles of
Confederation ought to be so corrected and enlarged as to
accomplish the objects proposed by their institution;
namely common defense, security of liberty,
and general welfare.” So Randolph there says he’s
proposing to correct and enlarge the Articles.
What followed that statement
was a rather radical plan of government that was not a
correction of the Articles. Instead it pretty much proposed
to demolish the Articles and create in their place a strong
national government that would be grounded not on the
individual states, but instead on the people
themselves. This plan of government–the
Virginia Plan is ultimately what it’s called–proposed that the
new government would have three branches.
The first would be a bicameral
legislature. The lower house would be
elected by the people. The upper house would be
selected by the lower house from candidates named by state
legislatures. The legislature would have the
power to nullify any state law contrary to the Constitution,
and representation–as I mentioned–
in the lower house is based on population.
The second branch was the
national executive. In the Virginia Plan,
the executive would have a qualified veto over acts of
Congress. The plan didn’t specify whether
the executive would be a single individual or a committee.
People talked about both.
The term of office wasn’t
specified either. And then obviously,
the third branch was the national judiciary,
which would consist of one or more supreme judges and some
inferior courts, to be chosen by the national
legislature to hold office during good behavior.
So I’ll repeat that:
Bicameral legislature; lower house elected by the
people; upper house selected by the
lower house from candidates named by state legislatures;
the legislature can nullify any state law that violates the
Constitution; representation is based on
population. Branch two is the executive who
has a qualified veto over acts of Congress,
and it’s not specified–one person,
many people, how long you should be in
office. And then the third branch,
the judiciary, with one or more supreme judges
chosen by the national legislature holding office
during good behavior. The Virginia Plan also included
a flexible amendment process and a procedure for the admission of
new states. Now, as you can hear there,
the basic outline of the final Constitution is kind of sitting
there in that plan. A sort of fundamental frame of
what’s coming in the next few months is contained within the
Virginia Plan. So from the start of the
Convention, things look a little auspicious
for the nationalists, and sure enough relatively
early on in the Convention there’s a vote that a new
national government ought to be established and it should have a
supreme legislative, executive, and judiciary branch.
Now that’s a pretty major thing
to decide. It’s a pretty major victory for
people who are really firm nationalists;
that, okay, the Convention now has committed to setting up a
supreme central government with three branches.
And some more nationalist
victories followed. So for example,
the Confederation decided that the executive would be one man
after debating this for a while–
and I’ll talk a little bit more about this toward the end of the
lecture– but they ultimately decided
that one man should be the executive,
and clearly, in a world where you’re scared
of centralized power and thinking about kings,
that’s a big decision. And then they began to discuss
representation in the lower house of the legislature,
and I’m also going to come back to representation in a few
minutes. But for now I’ll simply state
the obvious, which is: of course this debate
broke down– as this debate always breaks
down–into small states versus large states,
small states not liking the idea of having representation be
based on population, large states being perfectly
happy with that idea. And small states had a good
reason to fear that their influence would just be
eliminated in some degree if everything is based on
population. So on June 15,
William Patterson of New Jersey proposed his own plan,
which becomes the New Jersey Plan–it’s another New Jersey
moment, the New Jersey Plan–and of
course this is a plan that’s much more popular among
small-state representatives. The New Jersey Plan suggested a
one-house legislature in which obviously each state would have
one vote. There would be a plural
executive–so an executive consisting of more than one
person– who would be elected by the
Congress, and a supreme court chosen by
the executive. Now you can see how in some
ways that there are little vestiges of the Articles sitting
there in that plan: there’s a unicameral
legislature; each state has one vote.
Even so, even though this is
supposedly a less centralized, less scary alternative to the
Virginia Plan, still it is giving more power
to the national government than the Articles had done.
Three days later,
someone successfully moved to postpone consideration of the
New Jersey Plan and instead consider simply revising the
Articles. You can imagine the sort of
“uh” going around the room:
oh, no. Now at this point,
Alexander Hamilton stood up and made a dramatic move.
On June 18, he made what some
describe as a six-hour speech– I can’t imagine giving or
listening to a six-hour speech– in which he proposed his plan
of government, which as you’ll hear,
is really, really, really, really centralized and
national. Basically, Hamilton’s plan
reduced the states to administrative subdivisions.
Each would have a supreme
executive appointed by the national government;
a chief executive elected for life during good behavior,
elected by electors who were elected by electors who were
popularly chosen. Okay.
How removed can we get the
people [laughs] from the process of choosing
the executive? Hamilton also proposed a senate
chosen for life during good behavior and an executive with
absolute veto power. Okay.
That’s way out there in scary
land. You can imagine–he gives a
six-hour speech and that’s what he comes up with.
He also during the speech
praised the British government as the best government on the
face of the earth. Right?
That’s Hamilton. So basically Hamilton never
lives down this speech. As a delegate later put it,
Hamilton’s dramatic speech was “praised by everybody,
but supported by none.” [laughs] It was like: thank you;
you can sit down now. And it really did haunt him to
the end of his days because it seemed to be eternal proof to
anybody who even vaguely didn’t like him that he was really a
monarchist at heart– that he’s just waiting for a
chance to convert the government into a monarchy with a king at
its head. It’s–You can see why it was
important to keep the proceedings secret and you can
see how they did not get–remain a secret for very long.
Right? Clearly they leaked.
If–this is like the tin can
tied to Hamilton’s reputation for the rest of his life.
Clearly it’s leaking,
but–yeah, he never lived down that speech.
Now the question is:
why did he stand up and give that speech?
Why did he stand up and praise
the British government as being the best government on the face
of the earth? Why did he propose this extreme
plan knowing how people felt about some of these ideas?
And there is disagreement;
there is not agreement on this. Some historians assume that
this was a strategic move, and that Hamilton was trying to
push the Convention past the weak New Jersey Plan or,
horror or horrors, just revising the Articles.
So according to this strategy,
Hamilton’s plan would have looked so extreme that the
Virginia Plan would look really good in comparison,
and sure enough not that long after Hamilton’s speech,
the New Jersey Plan is defeated, so if this is why
Hamilton did this, maybe you could say it worked.
However, it’s equally possible
that Hamilton wanted at least a moment to stand up and offer his
ideas and basically state, ‘Okay.
Here’s my plan of government.
Here’s my little moment to
shine. Here’s what I think we should
be doing.’ And I always feel–I don’t
which of these is true or not true.
I think either one could be or
actually both could be, but certainly the latter theory
has a little credence to it only because you have to feel sorry
for Hamilton at the Convention. Here is this guy who for
roughly a decade has been saying we need a stronger national
government. He’s one of the first;
he’s one of the strongest; he’s consistent;
he’s out there; this is his message.
He finally gets the
Constitutional Convention and the other two delegates from New
York do not like the idea of really strengthening the
national government very much– and it’s one state,
one vote, so basically his vote doesn’t matter at all.
So, this poor guy.
It’s like: ‘my mission,
my mission; hey, finally I’m here and…
I can’t do anything.’
And it’s like: aw, poor guy.
So it’s possible that he did
actually stand up and say, ‘Okay, whatever.
Here’s what I would do
[laughs]–and I’m going to announce this and never live it
down– but here’s what I would do
during this, what should be my prime moment.’
So for one reason or
another–who knows whether it was strategic or because he
wanted his moment to lay out his plan–
the fact is that that night after he gave the amazing speech
he did meet with Madison and revise Madison’s notes so that
they would be an accurate reflection of what he said just
in case anyone didn’t hear him praise the British government as
the finest on the face of the earth.
[laughter] Okay.
So a little truth in both,
I think. Now I’m about to do a really,
really grave injustice to the Constitution,
and so now is the moment when the Founders will be spinning in
their graves, because I’m going to basically
condense my discussion of the Constitution down to three main
issues, not because they’re the only
issues that should be discussed, but because certainly they’re
all important issues, and because they show something
about how concerns– issues–of the Revolution
continued to play a role in American politics and in
American public life. I apologize to all Founders for
condensing the Constitution down into mere minutes.
The first issue that I want to
discuss is representation. And the question here,
the obvious one: population or one state,
one vote. Small state, big state battle.
Small states are afraid of
having no influence, which they continue to be
afraid of. This is not a battle that stops
once this decision is made. It continues on,
and in one way or another states are always sort of
objecting. There’s a secession–potential
secession plot by New England in the early nineteenth century
because they feel that they have no influence.
So this doesn’t go away,
but certainly at this point it’s a real sticking point.
And ultimately a committee came
up with a solution, which is known either as the
Great Compromise or the Connecticut Compromise,
and the reason why it’s the Connecticut Compromise is
because it was proposed by Connecticut delegate Roger
Sherman. Roger Sherman is a local boy.
Yet again New Haven appears on
the map. Roger Sherman lived in New
Haven and actually– You may have not have noticed
it because I’m probably the geek who notices every historical
plaque in the universe, but on the front of the Union
League Caf� there actually is a plaque to Roger Sherman.
It was his house.
Here was his house and here is
what he did and we like Roger Sherman.
So he’s a New Haven guy.
He’s the guy who proposes the
Connecticut Compromise and basically,
as you could predict, the compromise says
representation in the lower house will be based on
population and in the upper house one state,
one vote. And that gets passed on July
16,1787. So representation,
first major issue. Second major issue–although in
a way the problem with this one is that it was not a major
issue– is the question of slavery,
which clearly is linked to the question of representation.
On August 8,
Northern states attacked slavery on moral grounds and
proposed taking no account of slaves as part of the population
when allocating representation in the national legislature.
Now obviously many Southerners
did not like this idea and they defended slavery on moral and
economic grounds, and they were joined by some
Northerners who were afraid that this issue was just going to
dissolve the Union. Gouverneur Morris of
Pennsylvania offers a nice sort of example of the anti-slavery
point of view. I’ll quote Morris here:
“Upon what principle is it that the slaves shall be
computed in the representation? Are they men?
Then make them citizens and let
them vote. Are they property?
Why then is no other property
included? The houses in this
city–Philadelphia–are worth more than all the wretched
slaves which cover the rice swamps of South Carolina.
The admission of slaves into
the representation, when fairly explained,
comes to this: that 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 his fellow creatures from their dearest connections,
and damns them to the most cruel bondage,
shall have more votes in a government instituted for
protection of the rights of mankind than the citizen of
Pennsylvania or New Jersey, who views with a laudable
horror so nefarious a practice.”
That’s a statement–a strong
statement. Other side of the argument:
Charles Pinckney of South Carolina was among those who
stood up and tried to justify slavery.
An example of his argument:
He said, “If slavery be wrong, it is justified by the
example of all the world…. In all ages one half of mankind
have been slaves.” And he cited Greece and Rome
and other ancient city-states, as well as sanctions given to
slavery in modern times. So slavery is mentioned,
slavery has its moment of debate, but it is important to
note, it was in a sense a little more than a moment.
It only occupied a few days.
The issue was recognized to be
a deal breaker, and when the delegates held up
their concern over slavery against the idea of forming a
Union– so basically when they saw that
if they really confront the issue of slavery,
they may never get a chance to confront the issue of union–
they just decided not to confront the issue at all.
And they memorialized their
inability to confront the issue in the document,
the Constitution itself, in Article I,
Section 9 of the Constitution, and Article I deals with
Congress. It states that,
quote, “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”–
which basically says Congress can’t stop the slave trade
before 1808. But look at how indirect that
language is. Right?
It doesn’t say what I just said
in very simple terms. The “Importation of such
Persons as any one of the States shall think proper to
admit.” Can there be a more indirect
way of referring to slavery? They’re tap dancing around this
issue. They’re finding one way or
another just not to confront it, so the word “slave”–
the word “slavery”– does not appear in the
Constitution. So basically faced with a
pretty fundamental moral problem, the delegates to the
Constitutional Convention looked the other way.
In their minds,
the Union was too tenuous for anything this controversial to
be addressed, and this kind of sort of
skipping out or not confronting the issue because it seems like
the deal-breaker would be seen again and again and again,
and obviously eventually it becomes the deal-breaker and it
does contribute to the breaking of the Union.
So representation,
slavery, two large issues under debate or not under debate
depending on which one you’re talking about.
The third issue I want to bring
up concerned the national executive, and obviously that
really had links to the Revolution.
The Revolution was a revolt
against strong centralized power in the form of a monarchy and a
monarch. We’ve seen in previous lectures
how state constitutions that were created in the 1770s really
showed this ongoing fear of tyrannical centralized executive
power. So we’ve seen,
when we were looking at those state constitutions,
how more often than not legislatures were given more
power and governors were denied some power.
It’s the same fear,
the same spirit that’s charging the debate during the
Convention. So questions about the national
executive came up again and again.
How should he be elected?
By electors?
By electors chosen by state
legislatures? By state governors?
By the national legislature?
By popular election?
How long should he serve?
Proposals ranged from two years
to life during good behavior. The ultimate compromise
suggested that the President would serve for a four-year term
and it didn’t set a limit on how often he could be reelected.
And he would be elected by
electors in the separate states, which reassured delegates who
were worried about state rights–
and each state could decide for itself how to select its
electors. So if a state wanted to select
electors by popular election, they could.
If a state wanted to have their
legislature pick electors, they could.
Again, they’re sort of allowing
the states to come up with their own way of doing this.
States still have rights.
But still, big,
scary issue of the executive. So in a way this–all of these
sort of compromises and decisions end up creating an
executive who– at least it felt like he was
being controlled in some way every four years by having to
face election. Now in some ways,
considering everything that I just said about being scared of
monarchy, kings, America sort of slipping
right back into a monarchy, this executive is granted a
surprising amount of power. He’s Commander in Chief of the
armed forces. He could carry on diplomacy.
He could recommend measures to
Congress. He could exercise a veto,
although obviously it could be overturned by a two-thirds vote
in each house of Congress. Part of the reason for this
amount of trust in the executive was the idea of checks and
balances. So people really actually did
believe in checks and balances and think that this isn’t a
single executive, sort of scary and alone with no
way to check his power– that the Constitution actually
seems to be kind of nicely balanced,
so that maybe this person actually has some restraints or
some reins pulling him in. Now obviously this is
the–I’m–I feel so bad. Hamilton, Madison–I’m so sorry.
This is the most vast
overgeneralization of the Constitution that I can almost
possibly imagine, and I will come back to it
because we have to get it ratified,
which is part of what we’re going to do on Tuesday.
But in the interest of time:
on September 16,1787, the Constitution was agreed
upon. On September 17,
it was signed and sent to the Confederation Congress to pass
along to the individual states so that they could ratify it.
And there needed to be nine
states to ratify the Constitution for it to go into
effect, and each state would have its
own ratifying convention to decide the issue.
So what we’re going to be
looking at, at least at the beginning of
next Tuesday’s lecture is this second debate,
which is: what do we really think about the Constitution?
And part of what we’ll be
pulling from that is, what kind of a sort of status
check does it show us about what Americans are thinking at the
time? In what way do the different
arguments for and against tell us something about America at
that moment? So we’ll see the sort of highly
contested debate. We’ll see states that say no
and then say yes. Rhode Island is still over here
somewhere waiting to see what happens.
And it’s really something that
people are watching closely. I’ll talk a little bit more
about this on Tuesday, but I once again also turn to
Ezra Stiles. I’m basically always looking
for something that makes this real, so that it’s not just:
the document, the debate, the Constitution.
So Ezra Stiles’ diary–I love
Ezra Stiles’ diary, so I’ll mention it a little bit
more on Tuesday. But he talks about what he
thinks about what’s going on, and he talks about watching
states ratify the Constitution. I’ll mention some of that as
well, because it again, shows one guy that’s kind of
responding to what’s going on in a really interesting way.
I will stop there.
I will see you on Tuesday.
Have a good weekend.

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