Dr. Almon Leroy Way, Jr.,

University President & Professor of Political Science

1. The 1787 Federal Constitutional Convention:

a. What the Federal Convention Was:

    America's first and only Federal Constitutional Convention.

b. Time of the Convention's Meeting:

    Late Spring and Summer, 1787.

c. Place of the Convention's Meeting:

    Independence Hall, Philadelphia, Pennsylvania.

d. Membership of the Convention:

    Delegates elected by the state legislatures in twelve of the thirteen states.
    Twelve of the thirteen states sent delegates to the Federal Constitutional Convention.
    Rhode Island did not send delegates.

e. Legal Mandate of the Convention:

    The Federal Convention was called by the Confederation Congress,
    the U.S. Congress under the Articles of Confederation.

    The Convention was called for the sole purpose of drawing up and proposing
    amendments to the Articles of Confederation.

f. Action Taken by the Convention:

    The Convention ignored its instructions from the Confederation Congress and
    drew up an entirely new constitutional document -- a constitutional document
    providing for a new and different scheme of national government.

g. Product of the Convention:

    Articles I-VII -- the seven original articles of the Constitution of the United States.

2. The Conditions That Gave Rise to the Federal Constitutional Convention:

a. A Central Government That Was Weak and Impotent:.

The national government of the U.S.A. lacked a sufficient grant of authority under the Articles of Confederation. Congress was too weak to deal effectively with America's serious problems after the Revolutionary War -- such problems as runaway inflation, economic depression, and threats from foreign powers.

b. Political Instability and Unbalanced Government in the States:

Many of the delegates to the Federal Constitution Convention perceived the danger of "tyranny of the majority," or " majoritarian dictatorship," at the state level. That is, these delegates feared emergence within their respective states of political regimes characted by "simple, unchecked democracy," or unlimited rule by the majority.

Because of the very high levels of political conflict within the states, delegates to the Federal Convention feared that the state governments were about to collapse, due to internal division between political factions prone to mob violence.

The Convention delegates feared that majoritarian tyranny and political instability in the states would lead not only to mob violence, but also to anarchy -- i.e., lawlessness, absence of government and domestic order, general breakdown of law and order -- and that anarchy would be followed by civil war.

All of this, the delegates feared, would result in the emergence of autocracy (dictatorhiip by one man) or oligarchy (absolute rule by a small clique, or cabal). The delegates also feared an alternative scenario: a course of events in which the chaos would result in the young American nation being so weakened and made so vulnerable that it would be subject to military invasion and conquest by one of the major foreign powers of the time -- Britain, France, or Spain.

c. The Articles of Confederation (1781-1789):

This document was America' first national constitution, or, more accurately, the product of the first attempt at drafting and adopting a national constitution for the U.S.A. The document was prepared in 1776, but was not ratified until 1781 It more or less legalized the arrangements under which the Second Continental Congress assumed governing power in 1775 and 1776.

        The Character of the Union of States Created. The chief characteristic of the union of states created by the Articles of Confederation was state sovereignty -- sovereignty of each of the thirteen American states. Under the Articles of Confederation, the "United States of America" was a league or alliance of sovereign or virtually sovereign states. The states were almost completely independent political communities. By far, the greater portion of governmental authority remained in the hands of the states.

        The Scheme of Central Government Provided. The United States Congress was the sole organ of national government specified in the Articles of Confederation. The Confederation Congress, a unicameral legislature -- a lawmaking assembly consisting of only one house, or chamber -- was composed of delegates chosen by the state legislatures, not representatives chosen by direct popular vote. The delegates, appointed by their respective state legislatures, were chosen for one-year terms, but were subject, at any time, to recall by the state legislatures.

As regards compensation for their services, the delegates to Congress were paid by their respective states, not by the central government.

The delegates were not independent decisionmakers. They were bound by and voted according to instructions received from their respective state legislatures.

Each state had only one vote on an issue before Congress. A state, regardless of the size of its population, had only vote on a decision made or action taken by Congress.

To pass a national law, a two-thirds majority vote of the thirteen states in Congress was needed. The enactment of national legislation required the approval of an extraordinary majority -- a majority significantly larger than a simple majority (50.1 percent of those present and voting).

An amendment to the Articles of Confederation required a unanimous vote, i.e., the approval of all thirteen states.

        The Constitutional Powers of Congress. The Articles of Confederation delegated a very limited number of powers to Congress. The Confederation Congress was granted power to--

    Conduct foreign diplomacy, i.e., handle relations between the United States and the governments of foreign countries, sending and receiving diplomatic representatives and entering into treaties and alliances;

    Borrow money on the credit of the United States;

    Issue bills of credit, i.e., print paper money;

    Regulate and set the standard of weights and measures;

    Declare and wage war;

    Raise armies and build, equip, and maintain a navy;

    Requisition the states for money and supplies, i.e., request that the states make voluntary contributions to the central government;

    Requisition the states for troops, i.e., request that the states lend their respective militias to the national government.

Congress was limited to the powers expressly delegated to it by the Articles of Confederation. Congress was constitutionally limited to the exercise of powers granted in so many words by the Articles of Confederation. If authority to take specific action or enact a particular type of law could not be found in so many words in the Articles, then Congress did not possess that authority. The provisions of the Articles of Confederation allowed no room for Congress to exercise implied powers, i.e., powers which, though not mentioned in so many words in the Articles, could be reasonably implied from the expressly delegated powers.

        The National Executive Not Constitutionally Specified. Under the Articles of Confederation, there was no constitutionally specified executive organ of the national government. The Articles of Confederation did not provide the central government with an executive branch, constitutionally separate from and largely independent of the legislature. Executive offices and departments in the central government were to be created by ordinary legislation enacted by Congress and were to be subordinate and accountable to Congress.

        Weaknesses of the Central Government. Under the Articles of Confederation, weaknesses of America's central government included:

    Financial and Economic Weaknesses.

    Congress lacked power to regulate economic activity, including three types of commerce -- foreign commerce (international trade, or trade between the U.S.A. and foreign countries), interstate commerce (trade among the member-states of the American Union, i.e., the states comprising the U.S.A.), and intrastate commerce (trade carried on within the borders of a single state).

    Congress also lacled power to (1) lay and collect taxes and (2) prohibit or regulate the issuance of paper currency by the individual states.

    Due to the absence of the foregoing powers powers in Congress and the lack of cooperation on the part of the states, the central government was unable to--

    (1) Pay off the national debt;

    (2) Establish and maintain a uniform currency for the entire country;

    (3) Protect the rights of parties under contracts legally entered into;

    (4) Establish a common system of tariffs and customs duties for the country;

    (5) Prevent each state from setting up its own system of tariffs;

            [In setting up its own system of tariffs, a state imposed tariffs on goods from         other states as well as on foreign imports. The Result: Interstate commerce         was paralyzed.]

    (6) Successfully negotiate trade treaties with foreign governments;

            [Reason: Since the central government could not force the states and         their inhabitants to abide by treaties it concluded with foreign governments         the central government was unable to live up to its international obligations --         its obligations under treaties.]

            [The Result: America's international trade was paralyzed.]

    (7) Cope with the problems of runaway inflation and economic depression.

    Military Weaknesses:

    Congress lacked important war powers.

    Congress did not possess the power to federalize the state militias -- i.e., the power to call the state militias into the national military service. The Articles of Confederation granted Congress authority to requisition the states for troops. However, Congress had no effective means of compelling the states to comply with congressional requisitions. Each state was completely free to reject outright or substantially reduce a congressional requisition of state troops.

    Moreover, Congress was unable to raise an adequate national army or navy of volunteers, due to the absence of congressional authority to lay and collect taxes.

    These military weaknesses of the central government existed at a time when the U.S.A. was facing serious threats from foreign powers and was in dire need of a central government with ample power to raise, fund, maintain, and operate strong national defense forces.

    The U.S.A. faced threats from the British to north in Canada, the Spanish and Amerindians to the south in Florida, and the French and Amerindians to the west. Moreover, the Atlantic Ocean, to the East of America's shores, was controlled by the British Navy.

    The young American nation, politically unstable, financially and economically troubled, internally divided and militarily weak, was surrounded by enemy and potential enemy forces.

    Structural Weaknesses:

    The Requirement of an Extraordinary Majority for the Enactment of National Laws.

    An extraordinary majority -- two-thirds of the thirteen states -- was required for the passage of legislation by Congress. This made it extremely difficult for Congress to enact national laws.

    The Central Government's Lack of Authority to Act Directly on Individuals.

    Since the central government lacked authority to act directly on individuals, i.e., regulate the conduct of individuals, Congress could not enforce its own decisions on public policy. Congress was dependent upon each state to enforce national laws within its borders.

    The Ability of the States to Nullify Acts of Congress.

    Each state could nullify --i.e., set aside -- an act of Congress, as regards its application and enforcement within the state's own borders. If Congress enacted a law regulating the behavior of individuals, that law could not be enforced within the borders of a given state, unless the legislature of that state (1) enacted a state law making the national law applicable to the inhabitants of the state and (2) provided for the enforcement of the national law by the state government. If the legislature of a state objected to a national law regulating individual behavior, the state legislature, by simply taking no action at all, could prevent enforcement of the national law within the borders of the state.

    The Requirement of Unanimous Ratification for the Adoption of Constitutional Amendments.

    Unanimous ratification -- i.e., approval by all thirteen states -- was required for amending or revising the Articles of Confederation. This requirement of unanimous ratification made virtually impossible constitutional change or reform at the national level. Therefore, no amendments were ever added to the Articles of Confederation. At least one state could be depended upon to object to a proposed amendment and thereby prevent its ratification and adoption.

        The Critical Weakness of the Central Government.The critical weakness of Congress, as regards its ability or inability to enforce its decisions, lay in the fact that Congress was dependent upon the voluntary cooperation of the states -- cooperation which the states were free to grant or withhold at will. In short, the central government functioned at the sufferance of the states.

During the postwar period, the central government's dependence on the voluntary cooperation of the states occurred at a most inopportune time and, therefore, placed Congress and the nation in an extremely precarious position. This was a period during which the states were less and less inclined to cooperate with each other and with the central government. The close of the War of the American Revolution diminished the sense of common danger and consequent perception of a critical need for the states to remain united in joint cooperative action against a common foe. In the absence of any widely perceived foreign threat, the states were strongly inclined to emphasize and pursue their respective particular interests, the special interests of one or more states often being in sharp conflict with those of other states. Looking after the common national interests of the U.S.A. was not high on any state's list of policy priorities.

Very divisive conflicts of local and regional interests caused recurrent dissention among the states. A prime example of this situation were the frequent and very strong disagreements between two opposing blocs of states -- disputes between the New England states and the states of the Deep South (at that time, Georgia and South Carolina). The dissention often made impossible joint decision making and action in the Confederation Congress to cope with the serious problems facing the nation during the postwar period.

d. Attempts to Amend the Articles of Confederation:

During the period prior to 1787, attempts were made to change the constitutional allocation of power between the states and the central government. The Confederation Congress proposed an amendment to the Articles of Confederation and submitted it to the thirteen states. The amendment, if ratified, would have granted to Congress the authority to levy a duty of five percent on imported goods.

The Confederation Congress also proposed and submitted amendments which would have empowered Congress to (1) regulate interstate and foreign commerce and (2) require the states to comply with the requisions of money and troops set by Congress.

All of these amendments failed because of the requirement in the Articles of Confederation of unanimous ratification. For an amendment to be ratified and become a part of the Articles of Confederation, it had to have the cosent and approval of all thirteen states. Each state had the power of absolute veto over a proposed constitutional amendment, and at least one state always refused to ratify a proposed amendment.

e. The Condition of the American Nation in 1776 and the Significance of That State of     Affairs:

        The Condition. The financial affairs of America's central government were in a very sad state. In 1776, the total revenue of the U.S. national government was less than a third of the interest due on the national debt. The absence of a taxing power in the central government prevented Congress from paying off the interest and principle on the national debt.

The new American nation lacked a common currency. Seven states issued their own currencies, since Congress lacked the power to regulate state currencies or prevent the states from issuing such curriencies.

The U.S.A. lacked national military forcies. Nine states maintained their own navies, and all thirteen states maintain their own armies, i.e., state militias. Congress lacked the power of military conscription as well as the power to federalize -- call into the national service -- the state military forces. The absence of a federal taxing power prevented Congress from raising a volunteer army or navy adequate to the needs of the U.S.A., as regards naintaining an effective military defense and implementing a viable foreign policy.

The U.S. central government's lack of power to regulate interestate and foreign commence rendered the central government unable to adopt and enforce a common national tariff and international trade policy. As a result, foreign governments were unwilling to conclude trade treaties with the U.S.A. because of its inability to compel the American states and their citizens to comply with treaties entered into by the U.S.A.

In short, the U.S. national government lacked authority over what are fundamental concerns of a nation-state and are addressed by the central government of any nation-state that is truly viable and sovereign -- (1) public finance, i.e., taxation, the government's borrowing and lending money, its credit rating, and its expenditures, (2) maintence of a uniform, stable, and reliable currency for the entire country, (3) regulation and promotion of commerce, and (4) military defense and international relations.

        The Significance. These were the matters of greatest concern to many Americans at the time. The central government's inability to operate effectively in these areas was a major cource of the (1) tremendous dissatisfaction with the political status quo and (2) the growing sentiment for the adoption of a new national constitution that would replace the Articles of Confederation and provide for a stronger national government -- a national government with significantly greater political authority.

3. Points on Which There Was Substantial Agreement at the Federal Constitutional

a. Commitment to Constitutionalism:

All delegates to the Federal Constitutional Convention were constitutionalists, believing in limited government under a written constitution. They all were opposed to any and all forms of authoritarianism, or absolutism -- government possessing and exercising absolute, unlimited power. The delegates were opposed to and determined to prevent the emergence of a political regime with unrestrained power, regardless of whether that unlimited power was in the hands of one person (autocracy), a small group (oligarchy, or the majority (absolute democracy).

b. Commitment to Republicanism:

All delegates to the Convention were in agreement with the contention that the United States of America had to be a republic -- a representative government without inherited offices, a political regime in which each government office was filled by election or by appointment according to law. The U.S.A. was not to be a monarchy, not even a constitutional monarchy in which the monarch possesed constitutionally limited governmental authority and an elective representative legislative assembly held and wielded potent power. America's national government was to be republican as well as representative and constitutional in character. The only form of constitutional representative government given serious consideration by the Federal Convention was republicanism, or republican government.

c. Perception of the Need for a National Government with Significantly Greater Power:

Most of the Convention delegates saw the necessity of establishing a central government with significantly greater political authority than that of the central government under the Articles of Confederation. Most of the delegates supported the Convention's decision to draft and propose a national constitution providing for a central government that would (1) possess and exercise far greater power than did the Confederation Congress, (2) rest on the people, i.e., derive its legitimate governing authority from the individual citizens comprisind the American nation, instead of deriving that authority from the governments of the states, and (3) govern the people, i.e., exercise power directly over individuals, rather than having to act through and obtain the cooperation of the state governments in order to regulate the conduct of individuals

In short, most delegates favored a significant alteration in the constitutional basis of the American political regime, changing the union of American states from an alliance or league of virtually sovereign states into a much more closely-knit union with a genuine national government -- a national government with sufficient authority to make and enforce decisions on matters of common concern to the entire nation, enough power to adopt and implement decisions on national public policy.

d. Realization That the States Would Have to Retain a Degree of Autonomy:

The delegates were well aware that the new national constitution, if it was have any chance of being ratified and adopted, would have to allow the states of the union to possess and exercise a degree of autonomy (partial self-government, or limited home rule). No delegate thought that it was possible to effect a total transfer of political authority from the states to the central government. And Alexander Hamilton, delegate from New York, was the only delegate who thought it desirable to bring about a total transfer of authority to the national government, leaving the states as mere subordinate administrative subdivisions serving as agents of and acting on instructions from the central government. None of the delegates believed that the U.S.A. could be transformed into a unitary state, and only Hamilton believed that America should set up and operate such a highly centralized system of government.

e. Rejection of Absolute Democracy:

The delegates to the Convention were vittually unanimous in their rejection of absolute democracy, vitually unanimous in their opposition to and determination to prevent "simple, unchecked democracy," or "straight, unmodulated or unrestrained majority rule." Virtually all the delegates shared the conviction that unlimited rule by the majority was a very dangerous kind of government, that every effort should be made to avoid such a governmental system, and that the new constitution should contain provisions so worded as to build into the American constitutional system safeguards to prevent majoritarian dictatorship, or "tyranny of the majority."

f. Determination to Achieve a Stable System of Balanced Government:

Most of the delegates believed in balanced government. They wanted to construct a national government in which no single interest or faction would dominate, not even a majority interest or faction. They wished to create a government in which (1) there would be several largely independent power centers, (2) governmental authority would be constitutionally divided and distributed among the power centers, (3) the concurrence, or consent, of each of the power centers would be required for the adoption and carrying out of major decisions on national public policy, and (4) each power center could, by withholding its consent, veto the policy proposals of the other power centers.

Toward the end of achieving a genuine balance of power in the national government, the delegates favored (1) some application of the principal of "separation of powers," (2) strong emphasis on and application of the principle of "checks and balances," and (3) strict legislative bicameralism. As regards the matter of legislative bicameralism, most delegates (1) preferred a two-chamber national legislature and (2) advocated giving to each of two chambers the power of absolute veto of legislation favored by a majority in the other chamber.

What is the purpose of balanced government? The purpose of balanced government is to (1) prevent a slim national majority from shaping or making the decisions on controversial issues of national public policy and (2) make necessary a consensus (widespread and substantial agreement) to decide a given policy issue -- a consensus representing all or most major interests within American society. The expected consequence of the existence and operation of a system of balanced government is a situation in which the interests represented in a given organ of the national government can and probably will exercise its veto to protect themselves against rival and conflicting interests represented in the other organs of the national government. Governmental decisionmaking and action on controversial issues of national policy will be the result of political bargaining and compromise among the varying and competing interests. In such a situation, the rights and vital interests of any important minority within political society at large -- American society, the American people -- cannot be ignored or given short shrift.

4. Political Conflict and Controversy at the Constitutional Convention:

        The Central Controversy. The central controversy at the Federal Convention was over how the states were to be represented in the national legislature, whether it was to be equal representation (as was the case in the Confederation Congress) or representation according to population.

        The Underlying Conflict of Interests. The basis of the disagreement over representation in the national legislature was the rather sharp conflict of interests between two opposing blocs of states -- between the large states and the small states.

        The Large States and Their Interests. The large states were states with large populations and great wealth -- Virginia, Pennsylvania, New York, and Massachusetts. Of the thirteen states, there were only four large states. However, the combined population of the four states was larger than the combined population of the other nine states. And the combined wealth of the four large states was greater than the combined wealth of the nine remaining states.

Naturally, the four large states wanted each state's representation in the national legislature to be in proportion to its population or taxable wealth.

This would, of course, give the large states control of the national legislature, provided the four states could stick together as a cohesive bloc in the national legislature. This position of the large states on the question of representation was simply a matter of self-interest. Considering human nature, the position of the delegates from the large states on the matter of legislative representation should never have been a surprise to any generation of students of political and constitutional history.

        The Small States and Their Interests. The states with less wealth and small populations favored equal representation of the states in the national legislature. They wanted the states to have equal representation in either a unicameral national legislature or at least one house of a bicameral national legislature. In advocating this arrangement, the small states were seeking to prevent the large states from outvoting them and dominating the national government. And, of course, at the same time they were seeking to avoid domination by the handfull of large states, the small states sought to ensure their own control of the central government. The position of the small states on the issue of legislative representation, like that of the large states, was simply a matter of self-interest, with the delegates from the small states, like those from the large states, acting in accord with basic human nature.

        The Virginia Plan Versus the New Jersey Plan. The issue of legislative representation came to a head when the Federal Constitutional Convention began its consideration of the the Randolph Resolutions, more commonly known to political and constitutional historians as the "Virginia Plan.." The Virginia Plan for a new and stronger central government was introduced by Edmund Randolph, Governor of Virginia and head of the Virginia delegation at the Convention.

Under the Virginia Plan, the national government would possess and exercise sweeping powers. There would be a bicameral national legislature, in both houses of which a state would be represented according to its total free population or its total tax contributions to the national treasury. In addition to exercising its sweeping legislative powers, the national legislature would elect the national chief executive and appoint the judges on the U.S. Courts.

If the Virginia Plan, unmodified, had become the foundatiion and basic framework of the new central government, the four large states would have been enabled to completely control and dominate (1) both chambers of the national legislature, (2) the national executiver, and (3) the national courts. Or, so it seemed to the small states.

The issue of legislative representation and the Convention debate on the Raldolph Resolutions solidified the division and intensified the conflict between the two opposing blocs of Convention delegates (1) the delegates from and representing the interests of the large states and (2) the delegates from and representing the interests of the small states.

Delegates from the small states opposed the Virginia Plan and supported an alternative plan for a new central government, commonly known as the "New Jersey Plan."

The New Jersey Plan, or Patterson Resolutions, was presented by William Patterson, one of the delegates from New Jersey.

Under the New Jersey Plan, the central government would have a degree of political authority greater than that of the central government under the Articles of Confederation. The constitutional grant of authority to the central government would have included the powers to (1) tax and (2) regulate interstate and foreign commerce.

The New Jersey Plan called for a unicameral (single-chamber) national legislature in which each state would cast only one vote in the legislature's decision on a given issue. In other words, there was to be equal representation of the states in the national legislature.

        Why It Was So Important That the Conflict over Legislative Representation Be Resolved. The conflict between the two blocs of states over representation of the states in the national legislature deadlocked the Federal Convention and threatened to break it up. If the Convention was to continue meeting and deliberating and eventually manage to draft and propose a new constitution providing for a stronger and more effective central government, the controversy over legislative representation had to be resolved. If the issue had not been resolved by the Federal Convention, a proposed new constitution could not have been obtained at the time.

5. The Connecticut Compromise:

        What It Was. The Connecticut Compromise, or Great Compromise, was the agreement which the Federal Convention concluded to finally resolve the controversy over representation of the states in the national legislature.

The compromise, proposed by three delegates from Connecticut, was examined by a Convention special committee, which recommended that the Converntion vote to approve the proposed agreement. The Convention approved the Connecticut Compromise by a very slim majority. By the skin of its teeth, the Federal Convention avoided a breakup and survived to continue its work.

        Key Provisions of the Connecticut Compromise. The Connecticut Compromise called for a bicameral national legislature consting of an upper chamber (which was to become the U.S. Senate) and a lower chamber (which was to become the U.S. House of Representatives).

In the upper chamber, the states would be represented equally. The legislature of each state would choose two members of the upper chamber. Each member of the upper chamber would cast only one vote in any decision of the chamber, and he would vote independently, i.e., he would not be bound by instructions from the state legislature that elected him.

In the lower chamber, the states would be represented according to polulation; the larger the population of a state, the more seats it would be entitled to fill in the lower chamber. Each member would have one vote in any decision of the chamber. Seats in the lower chamber would be filled by direct popular election.

All bills for raising revenue -- all tax bills -- would originate (be first introduced into) the lower house. In the upper house, action could not be taken on a revenue bill until it was first considered and passed by the lower chamber. However, the upper house would have full power of debate and amendment.

        The Connecticut Compromise and the Small States. Once the large-state delegates had agreed to equal representation of the states in the upper chamber of the national legislature, most of the concerns and apprehensions of the small-state delegates disappeared. Since there were many more small states than there were large states, equal representation in the upper chamber would permit the small states to form a stable majority in that chamber and function as the dominant political force there. As long as it remained united, the small-state majority in the upper house could protect its interests against the popular numerical majority in the lower house.

Acceptance of the Connecticut Compromise by the Federal Convention made it possible for the small states to agree to the establishment of a strong national government. In fact, spokesmen for the interests of the small states became strong and enthusiastic supporters of the movement to obtain ratification and adoption of the proposed new constitution, the Constitution of the United States.

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