1. CHAPTER2 The Compromise of 1787and the Federalist AscendancyNn-t: The American Revolution, like all great revolutions, fractured old social relationsand stimulated new forms of political talk. Through the 1770s, rival elements from the top to the blttlm ofthe patriot coalition debated fiercely the kind of political order they hoped to build-and especially how democratic that order ought to be. Would there be a social revolution to match the political changes?Would the behaviors that had long governed race and gender relations yield to a new order? These debates continued after the British defeat at Yorktown amid bitter turmoil in the states capped by Shays' Rebellion in Massachusetts in 1786-1787. Leading moderate and conservative nationalists, shocked by what they saw as the democratic leveling tendencies of the state governments, began to call for a thorough revamping of the national union. Meeting in secret session in Philadelphia in1787, delegates from twelve of the states hammered out a new federal constitution, greatly enlarging the national glvernment's plwers. But these efforts proceeded with dfficulty. The Philadelphia convention reached agreement only after pro- longed haggling over basic issues-and even then some delegates refused to sign the new constitution. Thereafter, it took frantic organizing efforts and additional con- cessions-including promises of amendments-to beat back eloquent objections by Anti-Federalists like Merqt Otis Warren, who called the new charter "dangerously adapted to the purposes of an immediate aristocrqtic tyranny."Interpreting these events strongly colors any understanding ofthe early republic, for their significance would reverberate over the decades to come and touch the lives of all Americans. What lay behind the movement for a new na- tional constitution? Was the Constitution, as many Anti-Federalists believed, an undemocratic, even aristocratic document? Or did its adoption ultimately prlve a victory for more moderate, even demoratic forces? And what difference did the Novus Ordo Seclorrm (new order for the ages) make to prevailing ideologies of race and gender, considering the customs, Iaws, and iconography of the early republic were s0 closely linked to idealized notions of womanhood, domestic order, and white supremacy? 27

2. 28 Xajor Prohlems in the Early Republrc, 1787-1848 #DOCUMENTSIn Document l, a famous speech to the Philadelphia convention, the conservative nationalist Alexander Hamilton proposes his own outline for the new federal consti- tution. Compare Hamilton's remarks to the Constitution itself-and to Document 2, from James Madison's celebrated Federalist Number 10, a defense of the new plan written to rebut critics and sway a wary citizenry. Mercy Otis Warren-born to a lead- ing Massachusetts patriot family, and one of the most conspicuous women authors of the Revolutionary generation-was one of the critics. The next selection, from her Observations on the New Constitution, chiefly addressed the citizens of her home state during the ratification struggle and raises questions about the legitimacy and thepotential impact of the convention's work. Writing to Madison from Paris in 1788,Minister to France Thomas Jefferson supported many features of the new Constitutionbut lamented its lack of a bill of rights. Document 3 includes Jefferson's complaint aswell as Madison's remarks in the Virginia state ratification convention, explaining hismisgivings about a bill ofrights but also acceding to their addition by the process ofamendments afier the states completed ratitying the new federal plan.While the Framers were still at work in Philadelphia, the Continental Congressapproved an ordinance, inspired by Jefferson years earlier. that outlined how federallycontrolled territories that lay northwest of the Ohicl River would be governed. Docu-ment 5, a selection from the Northwest Ordinance, includes the stipulations on slaverythat would become major sources of dispute over the following decades. Slavery wasalso an issue at the federal constitutional convention and the subsequent state ratificationconventions. In time, these debates would lead to what some have called the "compromiseof 1787," whereby South Carolina and Georgia agreed to join the Union in exchange forcertain concessions over slavery, including the so-called three-fifths clause and constitu-tional guarantees about returning fugitive slaves to their masters. Document 6, on slavery,democracy, and the Constitution, begins with an excerpt from a speech by the celebratedpatriot orator Patrick Henry, who opposed the Constitution on the grounds that by ex-panding federal power it would threaten slavery. Next come remarks by the New YorkerMelancton Smith, who initially opposed the Constitution because he believed it gave toomuch power to the slaveholders as well as to "the few and the great" generally. The dele-gates in Philadelphia and at the state conventions totally ignored one group of Ameri-cans: women, slave and free, of all classes and colors. Document 7 illustrates two sidesof predominant American thought about women at the dawn of the new republican era. l.Alexander Hamilton Addressesthe Constitutional Convention, 1787 Monday, Junel8th, 1787Mr. Hamilton-. . . What is federal? An association of several independent statesinto one. How or in what manner this association is formed, is not so clearlydistinguishable. . . . I hold it, that different societies have all different views and interests to pursue,and always prefer local to general concerns. . . . Men always love power, and statesFrom Max Farrand, ed.,The Records ofthe Federal Convention of 1787 (1931; New Haven: Yale Uni-versity Press, I 966), vol. I , pp. 282-30 1 . 3. The Compromise of 1787 and the Federalkt Ascendanry 29 will prefer their particular concerns to the general welfare; and as the states become I'arge and important, will they not be less attentive to the general government? What in process of time will Virginia be? She contains now half a million of inhabitants- in twenty-five years she will double the number. Feeling her own weight and impor- tance, must she not become indifferent to the concerns of the union? And where, in such a situation, will be found national attachment to the general government? . . . To avoid the evils deducible from these observations, we must establish a general and national government, completely sovereign, and annihilate the state distinctions and state operations; and unless we do this, no good purpose can be answered. . . . Examine the present confederation, and it is evident they can raise no troops nor equip vessels before war is actually declared. They cannot therefore take any pfeparatory measure before an enemy is at your door, How unwise and inadequate their powers! . . . I believe the British government forms that best model the world ever produced, and such has been its progress in the minds of the many, that this truth gradually gains ground. This government has for its object public strength arld individual se- curity. It is said with us to be unattainable. If it was once formed it would maintain itself. All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever main- tain good government. Can a democratic assembly, who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a perma- nent body can check the imprudence of democracy. Their turbulent and uncontrolling disposition requires checks. . . . I am therefore for a general government, yet would wish to go the full length of republican principles'Let one body ofthe legislature be constituted during good behavior or life.Let one executive be appointed who dares execute his powers'It may be asked is this a republican system? It is strictly so, as long as they remain elective. And let me observe. that an executive is less dangerous to the liberties of the people when in office during lif'e, than for seven years' It may be said this constitutes an elective monarchy? Pray what is a monarchy? May not the governors of the respective states be considered in that light? But by making the executive subject to impeachment, the term monarchy cannot apply. . . . Let electors be appointed in each ofthe states to elect the executive . . . to consist of two branches-and I would give them the unlimited power of pas sing all larvs with-out exception. The assembly to be elected for three years by the people in districts-the senate to be elected by electors to be chosen for that purpose by the people, andto remain in office during life. The executive to have the power of negativing alllaws-to make war or peace, with the advice of the senate-to make treaties withtheir advice, but to have the sole direction of all military operations, and to sendambassadors and appoint all military officers, and to pardon al1 offenders, tleason excepted, unless by advice of the senate. On his death or removal, the president of the 4. l0Major Problems in the Early Republic, 1787-1848 Senate to officiate, with the same powers, until another is elected. Supreme judicial officers to be appointed by the executive and the senate. The legislature to appoini courts in each state, so as to make the state governments unnecessary to it.All state laws to be absolutely void which contravene the general laws. An offi- cer to be appointed in each state to have a negative on all state laws. All the militia and the appointment of officers to be under the national government. . . .2. James Madison Defendsthe New Federal Constitution, 1788 Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never t'inds himself so much alarmed for their character and fate, as when he contemplates their propen- sity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public coun- cils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. . . . Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. . . . By a faction, I understand a number of citizens, whether amounting to a ma- jority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by de- stroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it in- stantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the hrst would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, differentFromThe Federalist Number l0,http:llwww.foundingfathers.info/f'ederalistpapers/fedindex.htm (August 6. 2006). 5. The Compromise of 1787 and the Federulist Asundanry )lopinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. . . .The latent causes of faction are sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different cir- cumstances of civil society. . . . So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivo- lous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal' nay with greater reason, a body of men are unfit to be both judges and parties at thesame time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but con- cerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? - . .It is in vain to say that enlightened statesmen will be able to adjust these clashinginterests, and render them all subservient to the public good. Enlightened statesmenwill not always be at the helm. . . .The inference to which we are brought is, that the CAUSES offaction cannot beremoved, and that relief is only to be sought in means of controlling its pppEcrs.If a faction consists of less than a majority, relief is supplied by the republicanprinciple, which enables the majority to defeat its sinister views by regular vote.. . . When a majority is included in a faction, the form of popular government, onthe other hand, enables it to sacrifice to its ruling passion or interest both the pub-lic good and the rights of other citizens. To secure the public good and privaterights against the danger of such a faction, and at the same time to preserve the spirit and the form ofpopular government, is then the great object to which our inquiries aredirected....By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be pre- vented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes ofoppression... . 6. )2 MajorProblenuintheEarll,'Republir, 1787-1846From this view of the subject it may be concluded that a pure democracy, by whichI mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a major- ity of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. . . .A republic, by which I mean a government in which the scheme of representa- tion takes place, opens a different prospect, and promises the cure for which we are seeking... . The two great points of difference between a democracy and a republic are: first,the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the pub- lic views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary orpartial considera- tions. . . . The question resulting is, whether small or extensit'e republics are more favorable to the election ofproper guardians ofthe public weal; and it is clearly de- cided in favor ofthe latter. . . . []t is to be remarked that, however small the republic may be, the represen- tatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain num- ber, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two con- stituents, and being proportionally greater in the small republic, it follows that, if the proportion of ht characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice. . . . [A]s each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult fbr unworthy candidates to practice with success the vicious arts by which elections are too often carriedl and the suffrages of the people being more free, will be more likely to centre in men rvho pos- sess the most attractive merit and the most diffusive and established characters. , . . The smaller the society, the fewer probably will be the distinct parties and inter- ests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a comlnon motive to invade the rights of other citizens; or if such a common motive exists, it will be more diffi- cult for all who feel it to discover their own strength, and to act in unison with eachother.... A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade 7. The Compromise of 1787 and the Federalist Asctndanqt33the whole body of the Union than a particular member of it; in the same propor- tion as such a malady is more likely to taint a particular county or district, than an entire State.In the extent and proper structure ofthe Union, therefore, we behold a repubii- can remedy for the diseases most incident to republican government. 3. Mercv Otis Warren Attacksthe Constitution, 1788 After the severe conflicts this country has suffered, it is presumed, that they are dis- posed to make every reasonable sacrifice before the altar of peace. But when we con- template the nature of men, and consider them on an equal footing, subject to the same feelings, stimulated by the same passions, and recollecting the struggles they have recently made, fbr the security oftheir civil rights; it cannot be expected that the inhabitants of . . . Massachusetts, can be easily lulled into a fatal security, by the declamatory effusions of gentlemen, who, contrary to the experience of all ages, would persuade them there is no danger to be apprehended from vesting discre- tionary powers in the hands of man, which he may, or may not abuse. . . .The banners of freedom were erected in the wilds of America by our ancestors . . . and there was reason to hope they would continue for ages to illumine a quarter ofthe globe, by nature kindly separated from the proud monarchies ofEurope, and the infernal darkness ofAsiatic slavery.And it is to be feared, we shall soon see this country rushing into the extremes of confusion and violence, in consequence of the proceedings of a set of gentlemen who, disregarding the purposes of their appointment, have assumed powers unau- thorized by any commission, have unnecessarily rejected the confederation of the United States, and annihilated the sovereignty and independence of the individual governments. The causes which have inspired a few men, assembled for very differ- ent purposes, with such a degree of temerity as to break with a single stroke the union of America, and disseminate the seeds of discord through the land, may be easily investigated, when we survey the partizans of monarchy in the State Conventions, urging the adoption of a mode of government that militates with the former profes- sions and exertions of this country, and with all ideas of republicanism, and the equal rights of men. . . .Though several State Conventions have assented to, and ratified, yet the voice of the people appears at present strong against the adoption of the Constitution. . . .It is true this country lately armed in opposition to regal despotism-impover- ished by the expences of a long war, and unable immediately to fulfil their public or private engagements, have appeared in some instances with a boldness of spirit that seemed to set at deflance all authority, government, or order, on the one hand, while on the other, there has been not only a secret wish, but an open avowal of the necessity of drawing the reins of government much too taught, not only for repub- licanism, but for a wise and limited monarchy. But the character of this people isFrom A Columbian Patriot, Observations on the New Constitution (Boston and New York: n.p., 1788), pp. 14-16, 18,21-22. 8. )+IIaior Problems in rhe Early Republit. 1;87-184,9 not averse to a degree of subordination: the truth of this appears from the early restoration of tranquility, after a dangerous insurrection in one of the states; this also evinces the little necessity of a complete revolution of government throughout the Union. But it is a republican principle, that the majority should rule; and if a spirit of moderation could be cultivated on both sides, till the voice of the people at large could be fairly heard, it should be held sacred: And if, on such a scrutiny, the proposed constitution should appear repugnant to their character and wishes . . . [w]ho would then have the effroritery to say, it not ought to be thrown out with indignation, however some respectable names have appeared to support it. But if after all, on a dispassionate and fair discussion, the people generally give their voice for a voluntary dereliction of their privileges, let every individual, who chooses the active scenes oflife, strive to support the peace and unanimity ofhis country, though every other blessing may expire; and while the statesman is plodding fbr power, and the courtier practicing the arts of dissimulation without check; while the rapa- cious are growing rich by oppression, and fortune throwing her gifts into the lap of fools, let the sublimer characters, the philosophic lovers of freedom, who have wept over her exit, retire to the calm shades of contemplation; there they may look down with pity on the inconsistency of human nature, the revolutions of states, the rise of kingdoms, and the fall of empires.4. Thomas Jefferson and James Madison Confront the Need for a Bill of Rights, L787, 1788 Thomas Jffirsonto James Madison, December 20, 1787I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes; and fbr that reason solely approve of the greater house being chosen by the people directly. . . . I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states: and I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate power. There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights pro- viding clearly and without the aid of sophisms for fieedom 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 of fact triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular Boyd. Julian P.; The Papers ofThomas Jefferson, VoL ]2: 7 August 1787 to 3l March 1788. A 1955 Princeton University Press, 1983 renewed PUP Reprinted by permission ofPrinceton University Press. 9. The Compromise of 1787 and the Federalist Ascendanry35enes all is given which is not reserved might do for the Audience to whom it wasaddressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confed- eration which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, there- fore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead ofgeneral wrong. Let me add that a bill of rights is what the people are entitled to against every gov- ernment on earth, general or particular, and what nojust government should refuse, or rest on inference. James Madison, Speech to Virqinia Ratifying Convention. I 7i8 Uune 241Mr. MADISON conceived that what defects might be in the Constitution might be removed by the amendatory mode in itself. As to a solemn declaration of our essential rights, he thought it unnecessary and dangerous-unnecessary, because it was evident that the general government had no power but what was given it, and that the delegation alone warranted the exercise of power; dangerous, because an enumeration which is not complete is not safe. Such an enumeration could not be made. within any compass of time. as would be equal to a generai negation. such as his honorable friend (Mr. Wythe) had proposed. He declared that such amendments as seemed, in his judgment, to be without danger, he would readily admit, and that he would be the last to oppose any such amendment as would give satisfaction to any gentleman, unless it were dangerous.Mr. MADISON. . . . If we propose the conditional amendments, I entreat gentle- men to consider the distance to which they throw the ultimate settlement, and the extreme risk of perpetual disunion. They cannot but see how easy it will be to ob- tain subsequent amendments. They can be proposed when the legislatures of two thirds of the states shall make application for that purpose; and the legislatures of three fourths of the states, or conventions in the same, can fix the amendrirents so proposed. If there be an equal zed. in every state, can there be a doubt that they will concur in reasonable amendments? If, on the other hand, we cail on the states to re- scind what they have done, and confess that they have done wrong, and to consider the subject again, it will produce such unnecessary delays, and is pregnant with such infinite dangers, that I cannot conter,nplate it without horror. There are uncer- tainty and confusion on the one hand, and order, tranquillity, and certainty, on the other. Let us not hesitate to elect the latter alternative. Let us join with cordiality in those alterations we think proper. There is no friend to the Constitution but who will concur in that mode. . . .From Jonathan Elliot, ed., The Debates of the State Conventions on the Adoption ofThe Federal Consti tution (182'l;Washington, DC: Jonathan Elliot, 1836), vol. 3, pp. 626-21 , 629-30. 10. 36 Major Problems in the Early Republic, 1787-1848 5. Congress Designs the Northwest Ordinance,7787 Be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient. . . .And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest:It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit: Article I. No person, demeaning himself in a peaceable and orderly manner, shall ever be mo- lested on account of his mode of worship or religious sentiments, in the said territory. Article II. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and ofjudicial proceedings according to the course of the common law. . . .Article III. Religion, morality, and knowledge, being necessary to good government and the happiness ofmankind, schools and the means ofeducation shall forever be encour- aged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and hu- manity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them. . . . Article VI. There shall be neither slavery nor involuntary servitude in the said territory, other- wise than in the punishment of crimes whereof the party shall have been duly From 'An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, July 13,1187: http://www.yale.edu/lawweb/avalon/nworder.htm (August 6' 2006). 11. The Compromise of 1787 and the Federalist Ascendancy37convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid. . ..6. Patrick Henry and Melancton Smith Offer Clashing Ideas About the Constitution, Slavery, and Democracy, 1788 Patrick Henry, Speech to Virginia Ratifying Convention, June 1788 Mr. HENRY. . . . With respect to that part of the proposal which says that every power not granted remains with the people, it must be previous to adoption, or it will in- volve this country in inevitable destruction. To talk of it as a thing subsequent, not as one of your unalienable rights, is leaving it to the casual opinion of the Congress who shall take up the consideration of that matter. They will nof reason with you about the effect of this Constitution. They will not take opinion of this committee concerning its operation. They will construe it as they please. Ifyou place it subse- quently, let me ask the consequences. Among ten thousand implied powers which they may assume, they may, if we be engaged in war, liberate every one of your slaves if they please. And this must and will be done by men, a majority of whom have not a common interest with you. They will, therefore, have no feeling of your interests. It has been repeatedly said here, that the great object ofa national govern- ment was national defence. That power which is said to be intended for security and safety may be rendered detestable and oppressive. If they give power to the general government to provide for the general defence, the means must be commensurate to the end. All the means in the possession of the people must be given to the govern- ment which is intrusted with the public defence. In this state there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States; and yet, if the Northern States shall be of opinion that our slaves are numberless, they may call forth every national resource. May Congress not say, that evetT black man mttst fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free. Another thing will contribute to bring this event about. Slavery is detested, We feel its fatal effects-we deplore it with all the pity of humanity. Let ali these considerations, at some fiture period, press with full force on the minds of Congress. Let that urbanity, which I trust will distinguish America, and the necessity of national defence,- let all these things operate on their minds; they will search that paper, and see if they have power of manumission. And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power? This is no ambiguous implication or logical de- duction. The paper speaks to the point: they have the power in clear, unequivocal From Jonathan Elliot, ed., The Debates ofthe State Conventions on the Adoption ofThe Federal Consti- tution(18211' Washington, DC: Jonathan Elliot, 1836), vol. 3, pp.589-91. 12. 38Maior Problems in the Early Republic, 1787-184Eterms, and will clearly and certainly exercise it. As much as I deplore slavery, I see.that prudence forbids its abolition. I deny that the general government ought to setthem free, because a decided majority of the states have not the ties of sympathyand fellow-feeling for those whose interest would be affected by their emancipa-tion. The majority of Congress is to the north, and the slaves are to the south. In this situation, I see a great deal of the property of the people ofVirginia in jeopardy, and their peace and tranquillity gone. I repeat it again, that it would rejoicemy very soul that every one of my fellow-beings was emancipated. As we ought with gratitude to admire that decree of Heaven which has numbered us among the free, we ought to lament and deplore the necessity of holding our fellow-men in bondage. But is it practicable, by any human means, to liberate them without pro- ducing the most dreadful and ruinous consequences? We ought to possess them in the manner we inherited them from our ancestors, as their manumission is incom- patible with the felicity of our country. But we ought to soften, as much as possible, the rigor oftheir unhappy fate. I know that, in a variety ofparticular instances, the legislatures, listening to complaints, have admitted their emancipation. Let me not dwell on this subject. I will only add that this, as well as every other property of the people of Virginia, is in jeopardy, and put in the hands of those who have no similarity of situation with us. This is a local matter, and I can see no propriety in subjecting it to Congress. Melancton Smith, Speech to New YorkRatification Convention, 1 7 88 [T]he rule of apportionment of the representatives is to be according to the whole number of the white inhabitants, with three fifths of all others; that is, in plain Eng- lish, each state is to send representatives in proportion to the number of freemen, and three fifths of the slaves it contains. He could not see any rule by which slaves were to be included in the ratio of representation. The principle of a representation being that every tiee agent should be concerned in governing himself, it was ab- surd in giving that power to a man who could not exercise it. Slaves have no will of their own. The very operation of it was to give certain privileges to those people who were so wicked as to keep slaves. He knew it would be admitted that this rule of apportionment was founded on unjust principles, but that it was the result of accommodation; which, he supposed, we should be under the necessity of admit- ting, if we meant to be in union with the Southern States, though utterly repugnant to his feelings. . . .I am convinced that this government is so constituted that the representatives will generally be composed of the first class in the community, which I shall distin- guish by the name of the naturctl aristocracy of the country. I do not mean to give offence by using this term. I am sensible this idea is treated by many gentlemen as chimerical. I shall be asked what is meant by the natural aristocracl,, and told that no such distinction of classes of men exists among us. It is true, it is our singularFrom Jonathan Elliot, ed., The Debates of the State Conventions on the Adoprion ofThe Federal Consti- rufion(1827:Washington, DC: Jonathan Elliot. 1836), vol. 2, pp. 226-27,245-4'7- 13. The Compromise of )787 and the Federalist Ascendancy 39 felicity that we have no legal or hereditary distinctions of this kind; but still there are real differences. Every society naturally divides itself into classes. The Author of nature has bestowed on some greater capacities than others; birth, education, talents, and wealth, create distinctions among men as visible, and of as much in- fluence, as titles, stars, and garters. In every society, men of this class will com- mand a superior degree of respect; and if the government is so constituted as to admit but few to exercise the powers of it, it will, according to the natural course of things, be in their hands. Men in the middling class, who are qualified as represen- tatives, will not be so anxious to be chosen as those of the first. When the number is so small, the office will be highly elevated and distinguished; the style in which the members live will probably be high; circumstances of this kind will render the place of a representative not a desirable one to sensible, substantial men, who have been used to walk in the plain and frugal paths of life. Besides, the influence of the great will generally enable them to succeed in elec- tions. It will be difficult to combine a district of country containing thirty or forty thousand inhabitants,-frame your election laws as you please,-in any other char- acter, unless it be in one of conspicuous military, popular, civil, or legal talents. The great easily form associations; the poor and middling class form them with dif- ficulty. If the elections be by plurality,-as probably will be the case in this state,- it is almost certain none but the great will be chosen, for they easily unite their interests: the common people will divide, and their divisions will be promoted by the others. There will be scarcely a chance of their uniting in any other but some great man, unless in some popular demagogue, who will probably be destitute of principle. A substantial yeoman, of sense and discernment, will hardly ever be chosen. From these remarks, it appears that the govefnment will fall into the hands of the few and the great. This will be a government of oppression. I do not mean to declaim against the great, and charge them indiscriminately with want of principle and honesty. The same passions and prejudices govern all men. The circumstances in which menare placed in a great measure give a cast to the human character. Those in middlingcircumstances have less temptation; they are inclined by habit, and the companywith whom they associate, to set bounds to their passions and appetites. If this is notsufficient, the want of means to gratify them will be a restraint: they are obliged toemploy their time in their respective callings; hence the substantial yeomanry of the country are more temperate, of better morals, and less ambition, than the great. The latter do not feel for the poor and middling class; the reasons are obvious-they are not obliged to use the same pains and labor to pfocure property as the other' They feel not the inconveniences arising from the payment of small sums' The great consider themselves above the common people, entitled to more respect, do not associate with them; they fancy themselves to have a right of preeminence in every thing. In short, they possess the same feelings, and are under the influence of thesame motives, as an hereditary nobility. I know the idea that such a distinction existsin this country is ridiculed by some; but I am not the less apprehensive of dangerfrom their influence on this account. Such distinctions exist all the world over, havebeen taken notice of by all writers on free government, and are foundedin the natureof things. It has been the principal care of free governments to guard against the en-croachments of the great. . . . 14. 40l,lajor Prohlerns t'n the Early Republic, 1787-184E 7. Wvo Artists Portray Different Idealsof Women in the New RepublicWoman Constricted ]'HI"rlct3D.L-L) (;ONrlTt I iJ[ 1',,Tllr-,F L,'-l;, ]{Ji}i Keep Within the Cornpass." sepia engraving, c. 17135-1805, Henry Francis Dupont Winterthur Nluseum 15. Ir(X,rteN'u.tro1s:edoo3'tunesnl'{l.IVoJourrueg'(g1g1-69gl'l)lsIlJuu,4ou4un'trol3utqsn11puouraql1Lualqu{ unqqndaY sa uqu.t7aw ,buopunsv $1111.1211)g sLlt pt.to LglI J0 asIMjJdLu)) aqJ 16. 42 X[a.jor Problems in the Early Republic, ] 787-1848sEJ-r.4y.tThe following essays offer clashing perspectives on the framing and ratification of theConstitution and on the larger political world in which these events occurred. Tradition-ally, historians have focused on the divisions among the delegates in Philadelphia over thecompeting interests of small states and large states, and especially over the design of theproposed Congress and questions of representations. Gordon S. Wood of Brown Univer-sity, a preeminent scholar of the early republic, takes a fresh look at these divisions andat the compromises that emerged. Paul Finkelman, a professor at Albany Law School,ofTers a much harsher assessment of the Constitution as an essentially proslavery docu-ment. In the third essay, the historian Jan Lewis of Rutgers University considers theideals and prejudices surrounding American women at the time of the founding. Weare left to ask about the role ofidealism and interest in the framing ofthe new nationalgovernment. Was James Madison's vision of an extended republic of differing interestsa realistic basis for national unity? What hopes and expectations about the conduct ofpolitics and government underlay Madison's ideas? Did the compromises made overslavery amount to a "covenant with death"? If so, how can we explain why both slave-holders and antislavery men could be found on both sides of the controversy over theConstitution'/ Finally, horv did American women flt into the new republican order? Conflict, Compromise, and the Framingof the Constitution GORDON S. WOOD July 16, 1787, was one of the most decisive days in the history of the United States.On that day, by the slimmest of margins-five states to four, with one state divided-the delegates to the Constitutional Convention in Philadelphia voted to accept equalstate representation in the Senate. In other words, every state in the Union, no matterhow small or large its population, would be represented by two senators. This deci-sion had made it possible today for Wyoming, with fewer than half a million people,to have the same representation in the Senate as California, with more than thirtymillion people. The Great Compromise, as it came to be called, broke a deadlock that hadthreatened to destroy the convention. If the compromise had failed, declared manydelegates (and many subsequent historians), the Philadelphia Convention would alsohave failed. And with its failure, the fledging repubiic of the United States mightvery well have fallen apart. The problem was that the Articles of Confederation, adopted by the ContinentalCongress in November 1711 and ratified in March 1781, had proved inadequate tothe task of binding together the thirteen states. In fact, by 1787, the Cont'ederationscarcely existed. Its shortcomings for the most part followed from its severely lim-ited scope and powers. The national government consisted of a single body, theConfederation Congress, in which each state had a single vote. The legislature's "July 16, 1787: The Day the Constin"rtion Was Saved" by Gordon S. Wood. Reprinted from Dcys of Desriny,General Editors James M. McPherson & Alan Brinkleyl Editor, David Rubel, By permission of DK Pub-lishing. Copyright O 2001 Dorling Kindersley Ltd. All rights reserved. www.dk.com. 17. 'the Compromise of )787 and the Federalist Ascendancy 43{nandate (there was no executive orjudiciary) dealt principally with foreign affairs (including war and treaty making), domestic matters that crossed state lines (such as fixing standard weights and measures and establishing a post office), and resolving disputes among states. More important, the Congress had no power to raise funds directly and no mechanism to enforce its laws. Even if the Philadelphia Convention had collapsed, it's unlikely that the Confederation could have gathered the states together again. For example, while waiting anxiously for news from Philadelphia, most members of the Confederation Congress stopped attending meetings in New York. The fate of the United States thus rested on what the Constitutional Conven- tion could achieve. The manner in which the states would be representecl in the new national gov- emment bedeviled the convention from the start. Indeed, as James Madison recalled, this issue alone threatened the success ofthe convention more "than all the rest put together." That the role of the states in the new federal government should have been the most serious issue was not surprising. The thirteen states guarded their sover- eignty jealously, as demonstrated by the clause in the Articles of Confederation that permitted a single state to veto amendments supported by all the others. Andtn 1776, the Declaration of Independence had been literally a declaration of the "thirteen trnited States of America," which claimed that as "Free and Independent States,they have full power to levy war, conclude peace, contact alliances, establish commerce, and to do all other acts and things which independent States may of right do."Whatever feelings of American nationalism existed, they paled before people's loyalties to their separate states. Although the United States was new, most of its constituent states had existed as separate colonies for a century or more and had developed symbols and traditions that were emotionally binding. In 1776, when people talked about their "country" or even their "nation," they usually meant Vir- ginia or Massachusetts or Pennsylvania. The development of a national constitution was not a project that attracted the revolutionaries'creative energies, nearly all of which went into their separate state constitutions. Framing governments for indi- vidual states, and not for the nation, said Thomas Jefferson in 1776, was "the whole object" of the American Revolution. No one at that time, John Adams recalled, even conceived "of consolidating this vast Continent under one national Government."The Confederation Congress was certainly not a national government in the usual sense of the term. The Articles of Confederation r.vere variously described as a "firm league of friendship," a "Treaty of Confederation," and a "council of nations." It was thus a coming together of thirteen sovereign states in an alliance not alto- gether different from the present-day European Union. . . .By the mid-1780s, however, many political leaders had concluded that not only was the Conf'ederation too weak to carry out its responsibilities, but also, more alarm- ing, the very state governments in which Americans had placed so many of their hopes had become the principal source ofthe vices besetting the nation. Since inde- pendence, many of the democratically elected state legislatures had passed all sorts of haphazard and unjust laws victimizing the private rights of minorities, especially creditor minorities. Because this legislation was backed by popular majorities in the states, it called into question the fundamental principle of republican government- that majorities should rule-and put the entire revolutionary experiment in doubt. . . . 18. 44 IrIrior Problems in rhe Enrl.t Republic. ];8;-1818For many American political leaders, this democratic despotism in the srates was the most important source of the crisis of the 1780s that led to the calling of the Philadelphia Convention. . . .The Convention was called for May 14, but spring rains. muddy roads, and other obstacles delayed the start until May 25, when a quorum was finally present. In all, fifty-hve delegates representing twelve states attended. Rhode Island, acutely jealous of its local autonomy, wanted nothing to do with efforts to revise the Articles of Con- f'ederation and sent no one. Although many of the delegates were young men-their average age was forty-two-most were also experienced, well-educated members ofthe political elite. Thirty-nine had served in the Continental or the Confederation Congress at one time or another, eight had participated in state constitutional con-ventions, seven had been governors, thirty-four were lawyers, and one-third were veterans of the Continental Army (that great dissolvent of state ioyalties, as George Washington had described it). Although Washington attended the convention and was immediately elected its president, many other Revolutionary War luminaries were absent. Samuel Adams was ill; Thomas Jefferson and John Adams were abroad serving as U.S. ministers to France and England, respectively; and Richard Henry Lee and Patrick Henry. although chosen as delegates by the Virginia legislature, re- fused to attend, Henry saying that he "smeit a Rat."On May 29,the convention frnally got down to serious business. Taking the lead, the Virginia delegation presented the first working proposal. Although introduced by Gov. Edmund Randolph, the head of the state delegation, the Virginia Plan was largely the work of thirty-six-year-old James Madison. . . .[The] scope of [Madison's] Virginia Plan was breathtaking. Many Americans expected the convention simply to amend the Articles of Cont'ederation by giving the Congress a few additional powers. Instead, Madison proposed a substantial re- arrangement that would allow the new government to exercise direct authority over individual citizens, unmediated by the states. Like most of the states. it would have an executive branch, a bicameral legislature, and an independentjudiciary.The most radical aspect of the Virginia PIan was its disregard for state sover- eignty in the makeup of the bicameral legislature. Under the Articles of Confedera- tion, each state had an equal vote in the single-house Congress. Under the Virginia Plan. however, representation in both houses would be proportional-based on popu- lation, on contribution of taxes. or on both. The primary difference between the two houses would be that the members of the first house would be chosen by the people of the several states, and these representatives would then choose the members of the second house. Finally, the two hottses would jointly select the national executive and the national judiciary. Many of the delegates also presumed that this second house would have sole authority to make treaties and appoint ambassadors. Terms of ofTice were not specified.In presenting the plan, Randolph argued that, because the vices of the 1780s were mostly due to "the turbulence and follies of democracy." the new federal gov- ernment had to be protected against not only the pitfalls of the Articles but also those encountered by the individual states. It had to be, according to Randolph, "a strong consolidated union. in which the idea of the states should be nearly annihilated." The Articles of Confederation had declared, "Each state retains its sovereignty, freedom ancl inclependence, and every Power, Jurisdiction and right, which is not by 19. The Compromise of 1787 and the Federalist Ascendancy tis confederation expressly delegated to the United States, in Congress assembled." The Virginia Plan, however, granted the new national legislatures the authority not only to legislate "in all cases to which the states are incompetent" but also "to nega- tive all laws passed by the several States contravening, in the opinion of the National Legislature, the articles of Union." This authority to veto state legislation was a measure of how disgusted Madison and other convention delegates had become with the foolish and unjust legislation being passed by the states. Madison believed the proposed veto power "absolutely necessary, and . . . the least possible encroach- ment on the State jurisdictions." By a vote of six states to one-with Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina voting aye, Connecticut voting no, and New York divided-the convention agreed at the outset to make the Virginia Plan the basis for its deliberations. Yet it was not long before the delegates from smaller states-notably New Jersey, lately with a quorum, and Delaware-grasped the plan's nationalist and consolidating implications. Virginia's proposal seemed to swallow the states; it ignored their individual existence and turned them into mere administration units. Because most of the delegates at Philadelphia were so eagef to create a strong central government, they initially ignored these implications of the Virginia Plan. But a number of them soon came to believe that it went too far in eclipsing the states.This issue was formally raised on Saturday, June 9, by William Paterson of New Jersey. A former state attorney general, Paterson was especially bothered by the proposal that seats in both houses of the new legislature be granted according to eacl states's population or wealth. Proportional representation' Paterson argued, would place majority power in the hands of the most populous states-particularly Virginia, Massachusetts, and Pennsylvania, which as a group contained nearly half the U.S. population. New Jersey, he warned, would never agree to confederate on such terms, to which Pennsylvania James Wilson retorted hotly that the people of his state would never confederate on a one-state, one-vote basis. "Shall New Jersey have the same right or influence in the councils ofthe nation as Pennsylvania?" the Scottish-born colleague of Madison exclaimed. "I say no. It is unjust"' Although convention delegates, such as Paterson and Wilson, often understood their conflict as one between small states and large ones, this is somewhat mislead- ing. Madison and Wilson, it's true, were delegates from the large and populous states ofVirginia and Pennsylvania, but their opposition to equal representation in the new national legislature was not based simply on a parochial concern for the interests of their respective commonwealths. Madison and Wilson wefe mofe cosmopolitan and far-sighted than that. For them, the real issue was whether any semblance of the oldConfederation would foul the new Constitution. As nationalists, they believed thatall the ills of the 1780s flowed inevitably frorn the vicious behavior of the states, andthey were worried that equal representation in the new national legislature wouldeffectively perpetuate the state sovereignty that had vitiated the Confederation. Theyknew that the small states would object, but they believed that these states wouldeventually have to submit because they couldn't imagine Delaware or New Jerseygoing it alone in defiance of the other states.- Two days later, on June 1 1, the convention reaffirmed the principle of propor-tional representation for both houses. Horvever, the vote regarding the second house, 20. 46 Alttior Problems in the Early Republi(, 1787*1848 what would become the Senate, was close: six states (Massachusetts, Pennsylvanip, Virginia, North Carolina, South Carolina, and Georgia) to five (Connecticut, New York, New Jersey, Delaware, and Maryland). The narrowness of this vote encouraged the small-state caucus. On June 15, Paterson proposed nine resolutions-essentially nine amendments to the Articles of Confederation-that became the New Jersey Plan. Although Paterson's resolutions granted to Congress the powers of taxation and commercial regulation that many had demanded for it, the New Jersey Plan neverthe- less continued the basic structure ofthe old Confederation, with each state equally represented in a single-house legislature. ln this proposal, New Jersey was supported by Connecticut, Delaware, and New York. Paterson and his allies were not opposed to a stronger national government; but, as Delaware's John Dickinson warned Madi- son, they thought the Virginia Plan was "pushing things too far," and the small states would never agree to a complete elimination of state sovereignty.With two such different proposals before it, the convention had to make a deci- sion. On June 19, it voted for the Virginia Plan against the New Jersey Plan, seven states (Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia) to three (New York, New Jersey, and Delaware), with Mary- land divided. Although this vote suggested that the new national government would be something otherthan a league ofindependent states, the struggle over the precise role of those states in the new framework was far from over. Most of the small-state delegates were good nationalists who did not really want to return to the Conf'edera- tion; at the same time, they were not willing to have their states' representation in the new government entirely eliminated. Thus. the issue of representation occupied the convention with heated debate over the next month. Throughout that time, as Luther Martin of Maryland later recalled, the delegates "were on the verge of dissolution, scarce held together by the strength of a hair."Among the delegates most strenuously advocating proportional representation, in addition to Madison and Wilson, were Alexander Hamilton of New York and Rufus King of Massachusetts (later a senator and presidential candidate from New York). These men claimed that the large states were too divided by manners, religion, and economics to combine against the rights and interests of the small states. Besides. they argued, history had shown that conf'ederations were usually undone by en- croachments made by individual parts upon the whole. If the new government were to be strong, the states would have to be kept out of it.Yet delegates from the small states, especially those from Connecticut, remained committed to equal representation. They countered that the interests of the srnall states would be overwhelmed by those of their larger neighbors. Indeed, without equal representation in the national government, they warned, states as political entities would eventually disappear, especially given the national government's proposed negative regarding state laws. The small states. Oliver Ellsworth of Con- necticut concluded, "would risk every consequence rather than part with so dear a right" as their equal voice in the national legislature. If the small states were willing to break up the convention on this issue, Wilson replied, so be it. Representation on the basis of population, not on "the imaginary beings called Slrlre.s," was too equitable and too just to be compromised. "We talk of states, till we forget what they are composed of"-narrow-minded and illiberal politicians. 21. The Compromise of 1787 and the Federalist Ascendanry t+/ ,Several proposals for equal representation were offered and beaten back, but with the small-state delegates refusing to budge and support for proportional repre- sentation apparently eroding, more and more delegates began seeking a solution in the suggestion first made by Roger Sherman of Connecticut on June I l-that one house proportionally represent the people and the other equally represent the states. On July 2, when this proposal resulted in a tie vote and a committee was selected to forge a compromise, Madison and Wilson knew their cause was in trouble. If the second house should contain an equal number of members from each state, it would be only a matter of time, they believed, before the states would overawe and domi- nate the national government.Gouvemeur Moris of Pennsylvania joined Madison and Wilson in vehemently opposing the committee's July 5 proposal that the states should have equal repre- sentation in one house ofthe legislature. These nationalists threatened, they cajoled, and they even predicted ominously that a majority of the American people would re- fuse to accept such an unjust solution. Sooner or later, they insisted, the small states would have to go along with whatever the majority of Americans wanted. "State at- tachments and state importance have been the bane of this country," Morris declared. "We cannot annihilate; but we may perhaps take out the teeth of the serpent."In a last-ditch effort to get the delegates to think about the issue in other than small-state-versus-large-state terms, Madison suggested that the real division in the nation was that between free and slave states. But the more the delegates argued about sectional interests that needed defending, the more sensible the proposal for state equality in the second house seemed. In the end, Madison's arguments notwith- standing, state loyalties and state interests were simply too strong for the proponents of proportional representalion to overcome.The decisive vote came on July 16, with Connecticut, New Jersey, Delaware, Mary- land, and North Carolina in favor of the states' equal representation in the Senate; Pennsylvania, Virginia, South Carolina, and Georgia opposed; Massachusetts di- vided; and New York not voting because its two Anti-Federalist delegates had gone home and its delegation lacked a quorum. Madison and the other nationalists were dismayed by the vote, seeing equal representation in the second house not as a rea- sonable compromise but as a momentous defeat. The Virginia delegation imme- diately asked for an adjournment, and the next morning Madison and his unhappy allies caucused to consider what might be done. Some delegates favored calling a separate convention without the small states present, but most, noted Madison, were reluctantly "inclined to yield," even iftheir acquiescence resulted in an "imperfect & exceptionable" constitution. Meanwhile, the small-state delegates, having won their point, became more than willing to abandon all other remnants of the old Confedera- tion and consider forming a strong central government. "The whole comes down to this," Charles C. Pinckney of South Carolina had gibed back during a June debate over the New Jersey Plan. "Give N. Jersey an equal vote, and she will dismiss her scruples, and concur in the National system."Of course, the embodiment of state sovereignty in one house of the legislature did prompt reconsideration of the powers granted that branch of government, and the convention spent a good deal of the next two months adjusting the original Virginia Plan to accommodate these new circumstances. The grant to Congress to legislate 22. 48Major Problems in the Early Republic, 1787-1848 "in all cases to which the states are incompetent" was replaced by an enumeration qf powers, and much to Madison's chagrin the negative over state laws was replaced by specific prohibitions on state lawmaking. (These became Article I, Section 10, of the fi nal Constitution.) Other changes also followed from Madison's heightened mistrust of the l-uture Senate. Selection of the executive, for example, was withdrawn from the legislature and vested in an alternative congress, the electoral college, in which each state had the same number of electors as it had representatives and senators combined. Indeed, the reduced confidence that Madison and other nationalists now had in the Senate made them much more willing to enhance the power of the presidency. Because the original proposal to have the Senate by itselfmake treaties and appointjudges and diplomats now seemed too dangerous, those authorities were transferred to the presi- dent, with the Senate retaining only the role of advising and consenting.When the Philadelphia Convention finally reported the Constitution on SeptemberI7 , 1181 , it was a document very different from the Virginia Plan of May 29 . Many delegates, including Madison, were initially unhappy with the result. In fact, in the immediate aftermath of losing the battle over proportional representation, Madison, the so-called Father of the Constitution, judged that the Constitution was destined to fail. Without the power to negative state laws, he complained to Jefferson in September 1787 , the new national government "will neither effectualiy answer its national object nor prevent the local mischiefs which everywhere excite disgusts against the state governments." Even Washington was reported to have said that the Constitution would not last twenty years. Despite this initial pessimism, Madison soon changed his mind and began work- ing for ratification of the Constitution. With Hamilton and John Jay, he contributed to The Federalisr, the series ofeighty-five essays published in NewYork in 1787-1788 in defense of the Constitution. He also played key roles in persuading Virginia to ratify the Constitution, adding the Bill of Rights in 1790, and overseeing the final document's implementation as a congressional leader during the 1790s. A11 these successes were made possible. he iater understood, by the compromises contained in the Constitution, the most important of which had taken place on J:;Jy 16. 1787. A Triumph for SlaveryPAUL FINKELA/IANWilliam Lloyd Garrison, the great nineteenth-century abolitionist, thought the Constitution was the result of a terrible bargain between freedom and slavery. The American states were, in Garrison's words, united by a "covenant with death" and "an agreement with Hell." . . .A careful reading of the Constitution reveals that the Garrisonians were conect: the national compact did favor slavery. . . . Both the text of the Constitution and theFrom "Making a Covenant with Death: Slavery and the Constitutional Convention," in Finkelman, Slavery and the Founders: Race and Libeny^ in the Age of Jffirson (1996; Armonk, NY: M. E' Sharpe' 2001), pp. 3-35. Replinted by permission of the author. 23. The Compromise of 1787 and the Federalist Ascendanry /10 debates surrounding it help us understand that the "more perfect Union" created by this document was in fact fundamentallv imoerfect. Slavery in the Constitutional StructureThe word "slavery" appears in only one place in the Constitution-in the ThirteenthAmendment, where the institution is abolished. Throughout the main body of theConstitution, slaves are referred to as "other persons," "such persons," or in the singular as a "person held to Service or Labour." Why is this the case? Throughout the debates, the delegates talked about "blacks," "Negroes," and"slaves." But the final document avoided these terms. The change in language wasclearly designed to make the Constitution more palatable to the North. In a debateover representation, William Paterson of New Jersey pointed out that under theArticles of Confederation Congress "had been ashamed to use the term 'slaves' &had substituted a description." This shame over the word "slave" came up at the Con-vention during the debate over the African slave trade. The delegates from the Caro-linas and Georgia vigorously demanded that the African trade remain open underthe new Constitution. Gouverneur Morris of Pennsylvania, furious at this immoralcompromise, suggested that the proposed clause read: the "Importation of slaves intoN. Carolina, S- Carolina & Georgia" shall not be prohibited. Connecticut's RogerSherman, who voted with the Deep South to allow the trade, objected, not only tothe singling out of specific states, but also to the term "slave." He declared he "likeda description better than the terms proposed, which had been declined by the oldCongs & were not pleasing to some people." George Clymer of Pennsylvania "con-curred" with Sherman. In the North Carolina ratifying convention, James Iredell, who had been a delegate in Philadelphia, explained that "the word slave is not mentioned" because "the northern delegates, owing to their particular scruples on the subject ofslavery, did not choose the word slave to be mentioned." Thus, southerners avoided the term because they did not want unnecessarily to antagonize their colleagues from the North. As long as they were assured of protection for their institution, the southerners at the Convention were willing to do without the word "slave." Despite the circumlocution, slavery was sanctioned throughout the Constitution. Five provisions dealt directly with slavery: Article I, Section 2, Paragraph -1. The three-fifths clause provided for counting three-fifths of all slaves for purposes of representation in congress. This clause also provided that, if any "direct tax" was ievied on the states, it could be imposed only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing what each state's contribution wouid be. Article I, Section 9, Paragraph 1. Popularly known as the "slave trade clause," this provision prohibited Congress from banning the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit" before the year 1808. Awkwardly phrased and designed to confuse readers, this clause pre- vented Congress from ending the Afncan slave trade before I 808, but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all commerce. Article I, Section 9, Paragraph 4. This clause declared that any "capitation" or other "direct tax" had to take into account the three-fifths clause. It ensured that. if 24. 50illajor Problems in the Early Republic, 1787-1848 a head tax were ever levied. slaves would be taxed at three-fifths the rate of whites. The "direct tax" portion of this clause was redundant, because that was provided for in the three-fifths clause.Article V Section 2, Paragraph 3. The fugitive slave clause prohibited the states fiom emancipating fugitive slaves and required that runaways be returned to their owners "on demand."Article V This article prohibited any amendment of the slave importation or capitation clauses before 1808. Taken together, these five provisions gave the South a strong claim to "special treatment" for its peculiar institution. The three-fifihs clause also gave the South extra political muscle-in the House of Representatives and in the electoral college-to support that claim.Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some provisions that indirectly guarded slavery, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee offederal support to "suppress Insurrec- tions" and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for reasons having nothing to do with slavery. The most prominent indirect protections of slavery were the following:Article I, Section 8, Paragraph.15. The domestic insurrections clause empow- ered Congress to call "forth the Militia" to "suppress Insurrections," including slave rebellions. Article I, Section9, Paragraph 5. This clause prohibited federal taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton. Article I, Section 10, Paragraph 2.This clause prohibited the states from taxing exports or imports, thus preventing an indirect tax on the products of slave labor by a nonslaveholding state. Article II, Section I, Paragraph 2. This clause provided for the indirect election ofthe president through an electoral college based on congressional representations. This provision incorporated the three-fifths clause into the electoral college and gave whites in slave states a disproportionate influence in the election of the president.Article IV Section, Paragraph 1. This clause allowed for the admission of new states. The delegates to the Convention anticipated the admission of new slave states to the Union.Article IV Section 4. The domestic violence provision guaranteed that the United States government would protect states from "domestic Violence," including slave rebellions. Article V By requiring a three-fourths majority of the states to ratily any amend- ment to the Constitution, this Arlicle ensured that the slaveholding states would have a perpetual veto over any constitutional changes.Finally, some clauses did not inherently favor slavery, and were not necessar- ily considered to affect slavery when they were debated, but ultimately protected the 25. The Compromise of 17B7 and the Federalist Ascendancy 5 linstitution when interpreted by the courts or implemented by Congress after the adop- tion of the Constitution. It would be wrong to argue that these illustrate the proslavery nature of the Constitutional Convention. However, these clauses do illustrate the way the Constitution set a proslavery tone, which enabled Congress and the courts to in- terpret seemingly neutral clauses in favor of slavery. Such clauses also directly chal- lenge William W. Freehling's argument that the Framers were inherently antislavery and that "the impact of the Founding Fathers on slavery . . . must be seen in the long run not in terms of what changed in the late eighteenth century but in terms of how the Revolutionary experience changed the whole American antebellum history." If we look at the "long run" impact of the Constitution on 'American antebellum his- tory," we find that the following clauses were used to protect slavery, not to harm it. Article I, Section 8, Paragraph 4. The naturalization clause allowed Congress to prohibit the naturalization of nonwhites, even though it is likely that some of the new states, especially those that granted suffrage to blacks, would have also aliowed foreign-born blacks to become citizens. Article I, Section 8, Paragraph 17.The federal district clause allowed Congress to regulate institutions, including slavery, in what became the national capital. Under this clause, Congress allowed slavery in Washington, D.C. During the Convention, southerners expressed fear that the national capital would be in the North. Article III, Section 2, Paragraph /. The diversity jurisdiction clause limited the right to sue in federal courts to "Citizens of different States," rather than inhabitants. This clause allowedjudges to deny slaves and free blacks access to federal courts. Article IV Section 1. The full faith and credit clause required each state to grant legal recognition to the laws andjudicial proceedings ofother states, thus obligating free states to recognize laws creating and protecting slavery. Article IV Section 2, Paragraph 1. The privileges and immunities clause requiredthat states grant equal privileges and immunities to "citizens" of other states; how-ever, in Dred Scott v. Sandford (1857), the Supreme Court affirmed a long-standingposition ofthe southern states that free blacks were not "citizens" under the Consti-tution and thus the slave states were free to deny privileges and immunities to them. Article IV, Section 3, Paragraph 2. Thls clause allowed Congress the power toregulate the territories. In 1820, Congress used this clause to limit slavery in theterritories, blutin Dred Scott v. Sandford the Supreme Court ruled that the clause au-thorized Congress to protect slavery in the territories, but not to ban the institution.Besides specific clauses of the Constitution, the structure of the entire docu-ment ensured against emancipation by the new federal government. Because theConstitution cfeated a government of limited powers, Congress lacked the power to interfere in the domestic institutions of the states. Thus, during the ratification debates only the most fearful southern antifederalists opposed the Constitution on the grounds that it threatened slavery. Most southerners' even those who opposed the Constitution for other reasons, agreed with General Charles Cotesworth Pinckney of south carolina, who crowed to his state's house of representatives: We have a security that the general government can nevel emancipate them [slaves], forno such authority is granted and it is admitted, on all hands, that the general government 26. 52 Ilajor Probkms in the Enrly Republir, 1787-1848 has no powers but what are expressly granted by the Constitution, and that ail rights not expressed were reserved by the severai states.The Constitution was not "essentially open-ended with respect to slavery." as the late Don Fehrenbacher argued. Nor is it true, as Earl Maltz has argued, that "the Constitution took no position on the basic institution of slavery." On the contrary, the Constitution provided enormous protections for the peculiar institution of the South at very little cost to that region. At the Virginia ratifying convention, EdmundRandolph denied that the Constitution posed any threat at all to slavery. He chal-lenged opponents of the Constitution to show, "Where is the part that has a ten-dency to the abolition o/ slavery?" He answered his own question by asserting,"Were it right here to mention what passed in fthe Philadelphia] Convention. . . . Imight tell yoD that the Southern States, even South Carolina herself, conceived thisproperty to be secure" and that "there was not a member of the Virginia delegationwho had the snnllest suspicion of the abolition of slavery." South Carolinians, whohad already ratified the Constitution, would have agreed with Randolph. In sum-ming up the entire Constitution, General Charles Cotesworth Pinckney, who hadbeen one of the ablest defenders of slavery at the Convention, proudly told theSouth Carolina House of Representatives: "In short, considering all circumstances,we have made the best terms for the security of this species of property it was inour power to make. We rvould have made better if we could; but on the whole, I donot think them bad." . . .The word "slavery" was never mentioned in the Constitution, yet its presencewas felt everywhere. The new wording of the fugitive slave clause was characteris-tic. Fugitive slaves were called "persons owing service or Labour," and the word"legally" was omitted so as not to offend northern sensibilities. Northern delegatescould return home asserting that the Constitution did not recognize the legality ofslavery. In the most technical linguistic sense, they were perhaps right. Southern-ers, on the other hand, could tell their neighbors, as General Charles CotesworthPinckney told his, "We have obtained a right to recover our slaves in whatever partof America they may take refuge, which is a right we had not before."Indeed, the slave states had obtained significant concessions at the Conven-tion. Through the three-fifths clause they gained extra representation in Congress.Through the electoral college their votes for president were far more potent thanthe votes of northerners. The prohibition on export taxes favored the products ofslave labor. The slave trade clause guaranteed their right to import new slaves forat least twenty years. The domestic violence clause gnaranteed them federal aid if they should need it to suppress a slave rebellion. The limited nature of federal power and the cumbersome amendment process guaranteed that, as long as they remained in the Union, their system of labor and race relations would remain free from national interference. On every issue at the Convention, slave owners had won major concessions from the rest of the nation, and with the exception of the commerce clause they had given up very little to win these concessions. The north- ern delegates had been eager for a stronger Union with a national court systemand a unified commercial system. Although some had expressed concern over the justice or safety of slavery, in the end they were able to justify their compromisesand ignore their qualms. 27. The Compromise of 1787 and the Federalist Ascendanq,53 The Republican Wife JAN LEWISTo the extent that the success ofthe republican endeavor rested upon the characterof citizens, republicanism demanded virtue of women, not because it numbered themas citizens but because it recognized how intimately women, in consensual unions, were connected to men. A virtuous man required a virtuous mate. Moreover, republi- canism called upon every means at its disposal to assure male virtue. That obsession with virtue, deriving its force from the fusion of Protestant and republican notions of character, persisted long after the Revolution had been won and the Constitution rati- fied. Well into the nineteenth century, Americans linked the fate of their nation to the virtues ofits people. Even if, as several historians have suggested, certain thinkers, before the end of the eighteenth century, had embraced liberalism and its premise of the self-interested individual, popular writers and, presumably, their audience had not. One writer put it emphatically: "Private vices are not plblic benefits." . . . [T]hat conceptualization of society-which continued to see the family as the microcosm of the wider world and to insist that "public good must grow out of private virtue"- held out a significant role for women. 'A woman of virtue and prudence is a public good-a public benefactor." She has the power to make "public decency . . . a fashion-and public virtue the only example." And how is woman to accomplish that great end? By her influence over the manners of men. Indeed, "nothing short of a general reformation of manners would take place, were the ladies to use their power in discouraging our licentious manner." Such a role might seen trivial did Americans not consider "the general reformation of manners" one of the young nation's most important goals, and did they not think women fully capable of contributing to it. Women might begin by re- forming themselves, for "there is not a more certain test of national depravity, than that which presents itself in the degeneracy of female manners." Male manners, however, were of more concern, and in changing them women were to play their most important role. So argued men, such as the essayist who held that women who were the beneficiaries of a "virtuous and refined education" might contribute "no less to public good than to private happiness. A gentleman, who at present must degrade himself into a fop or a coxcomb in order to please the ladies, would soon find that their favor could not be gained but by exerting every manly talent in public and private life." That same view could be expressed by a woman-for example, Miss C. Hutchings, who assured her fellow boarding-school graduates of the influence of "female manners on society in general": "were all women rational, unaffected and virtuous, coxcombs, flatterers and libertines would no longer exist." Such arguments rested on several important new assumptions. First, although the concern with "manners" betokened an upper-class emphasis upon gentility, the insistence that women are-or can be-a moral force transforms manners into mores, into the moral foundation of the society. Thus "it is . . . to the virtues of the fair . . . that society must be indebted for its moral, as well as its natural Frorn "The Republican Wife: Virtue and Seduction in the Early Republic" by Jan Lewis from Williant and Mar.v Quarterly,3rd ser.,44 (198'7),699-703, 706-10. Reprinted by permission of the author. 28. Major Problerns in the Early Republic, 17,97-1846preservation." Second, women play their moral role not by denying their sexuaiity,by becoming "passionless," but by using it to tempt men to be good.This conceptualization of f'emale inl-luence seems to have intrigued men andwomen in the decades just after the Revolution. Magazines printed and reprintednumbers of articles with similar titles and sentiments: "Female Influence," "Schemefor Increasing the Power of the Fair Sex," "The Influence of the Female Sex on theEnjoyments of Social Life," "The Power of Beauty, and the Influence the Fair Sexmight have in Reforming the Manners of the World." These, with a host of similar ar-ticles, argued that the potential for beneficial female influence was almost unlimited.The height of a woman's intluence was reached during the period of "love andcourtship," which, "it is universally allowed, invest a lady with more authority than inany other situation that falls to the lot of human beings." A young man who addressedhis classmates at Columbia College's commencement elaborated: "She can moldthe taste, the manners, and the conduct of her admirers, according to her pleasure." Moreover, "she can, even to a great degree, change their tempers and dispositions,and superinduce habits entirely new." Thus it was not in childhood that a man was most malleable; rather, it was when, grown to rlaturity, he sought the favors of a young lady that he was rrlost susceptible to influence. "By the judicious manage- ment of this noble passion flove], a passion with which the truly accomplished of the fair sex never fail of inspiring men, what almost miraculous reformations may be brought about'1" Once she had seduced him into virtue, the married woman's task was to preserve her husband in the exalted state to which her influence had raised him. "It rests with her, not only to confirm those virtuous habits which he has already acquired, but also to excite his perseverance in the paths of rectitude." The boldness of this formulation is stunning. What earlier Americans perceived as Eve's most dangerous characteris- tic, her seductiveness, is here transformed into her capacity for virtue. Wonan was to lead man into rectitude, to lure him to the exercise of manly virtue. What miraculous reformations became possible when the attraction between the sexes, which for mil- lennia had been considered the canse of the fall of mankind, could be transformed into the bedrock of the nation ! Women indeed had great power-nothing less than the ability, as one magazine implored, "to make our young men. not in empty words, but in deed and in truth, republicans." . . . The Edenic vision of marriage served to bridge the antipatriarchalism of the eighteenth century and the donesticity of the nineteenth. If the patriarchal model of familial relationships was suited to a hierarchically organized society, and if, as Nancy F. Cott has sugge