Constitutional Convention of 1787
The Constitutional Convention was a signal event in the history of federalism for it was there that the American style of federalism originated. The innovations in theory and design introduced in American federalism have in turn revolutionized the practice of federalism worldwide.
The Convention was the gathering of delegates from 12 of the new American states—Rhode Island never did participate—that wrote the Constitution for the union. The meeting, originally scheduled to open in Philadelphia on May 14, 1787, did not actually begin until May 25, when a sufficient number of delegations finally arrived to make it possible to conduct deliberations. The Convention ended on September 17, when the delegates signed the draft constitution they had prepared.
The proposed constitution was to replace the Articles of Confederation, the constitution of the American union in force when the Convention met. Even though the Articles had been formally in place only since 1781, the Constitutional Convention was the fruit of many years’ efforts throughout America to revise the existing confederal union. Those efforts, largely frustrated by the requirement of unanimous consent by all states to any changes in the Articles, had reached a peak of sorts in the Annapolis Convention of 1786. That meeting had been called to discuss commercial matters of mutual interest to the states, matters over which the government under the Articles had no power. The Annapolis Convention fell far short of success, however, for delegates from only 5 states appeared by the time the conference was scheduled to begin. One reason why attendance was so sparse was the prevailing conviction that more than commercial reform was needed to invigorate the governance of the union. In line with that thought, the delegates who did come to Annapolis, rather than concede the failure of their assembly, took the occasion to call for a general convention to meet in Philadelphia the following year “to take into consideration the situation of the United States, [and] to devise such further provisions as shall appear to them to render the constitution of the Federal Government adequate to the exigencies of the Union.” The states responded with greater alacrity to this invitation, which then encouraged Congress under the Articles to add its endorsement to a convention in February 1787. One reason for the better response to this second call for a general gathering was the outbreak of Shays’s Rebellion in western Massachusetts in August 1786. This rebellion was the result of an economic downturn coupled with the effort by Massachusetts to pay off its war debt quickly through heavy taxes, the results of which were a spate of farm foreclosures and the emergence of a group of angry and desperate farmers who took up arms to attempt to ease their situation. The Massachusetts militia was able to handle the uprising, but a wave of concern was felt throughout the union, for the Articles government had once again proved its feebleness when it was unable to contribute any significant aid to the effort to put down the insurrection.
At one time or another, 55 delegates from the 12 participating states took part in the Convention, but there was fluctuation at the fringes as some delegates came and went. At one point, for example, New York was completely unrepresented, for the majority of its delegates, quite unsympathetic to the direction in which the Convention was moving, just went home. The delegates were for the most part among the most distinguished men in the United States, including George Washington and Benjamin Franklin, probably the two best-known figures in the United States. All the delegates were prominent in the politics of their home states and many, like James Madison, had been active in the Government of the Confederation during and after the Revolution. Thirty-nine of the fifty-five had served in the Confederation Congress. Important figures were absent as well. Thomas Jefferson and John Adams were in Europe as diplomats. Moreover, some well-known leaders, like Patrick Henry of Virginia, suspicious of the intentions of those supporting the Convention, declined to attend. Some of these men, like Henry and fellow Virginian Richard Henry Lee, became leaders of the movement to oppose ratification of the new constitution after the Convention concluded its work.
After the resounding failure of previous efforts to reform the Articles, the success of the Convention is all the more remarkable. Three factors seem especially significant. First, the situation facing the American union was increasingly recognized as rather desperate. In addition to the scare of Shays’s Rebellion, the government under the Articles faced financial insolvency, ineffectiveness in foreign relations, and weakness at home. A consensus had grown that some change was necessary if the union was to survive. Secondly, some of the delegates had begun to think about the problems of union in a more than ad hoc fashion. Previous efforts at reform had been narrowly focused on particular problems as they emerged. During the year between the Annapolis and Philadelphia gatherings, James Madison in particular had been thinking about the needs of federal governance in a broader perspective. The problem of the Articles, he concluded, derived not from this or that particular defect, but from more fundamental errors of theory and design. The approach to both federal union and republican governance needed a major overhaul. The broader perspectives that Madison and others brought to Philadelphia helped break through the various stalemates that had dominated politics pre-1787.
The rules of procedure adopted by the Convention at its opening also helped greatly. The most important, probably, was the decision to maintain secrecy for the proceedings, a resolve that was remarkably well kept to. The secrecy of the Convention’s deliberations gave delegates insulation from immediate scrutiny, which allowed them to consider the rather radical reforms that were immediately laid before them, and which eventually evolved into the Constitution. Since their work was, at the end of the day, to face public scrutiny and consent or rejection, there was nothing undemocratic or inappropriate about the secrecy of the proceedings. Also important was the selection of George Washington as presiding officer of the Convention. His unrivaled prestige and gravity of character lent authority to the proceedings for those in Philadelphia and to the final result for those in the country at large.
More controversial than either of the above two initial decisions, and more ambiguous in its contribution to a successful outcome, was the adoption of the rule that state delegations would each possess one vote in the Convention, the same rule that prevailed in the Articles' Congress. Delegates from larger states sought a weighted voting system in which states like Virginia, large and wealthy, would have more voting power than, say, tiny Delaware. The equal voting rule gave the smaller states much more power to influence the outcome than would have been the case under the other system and on occasion led to tense moments when the smaller states were able to stymie the larger states. Nonetheless, on balance the equal voting rule also probably contributed to the Convention’s success by encouraging accommodation and compromise, which led to a document that all the states could more readily agree to accept.
From the point of view of federalism, the Convention conveniently divides into two large units. The dividing point is the so-called Connecticut Compromise, which put in place the main features of the federal system. Almost at the very beginning of the Convention, Governor Edmund Randolph of Virginia rose to offer a constitutional plan on behalf of his state’s delegation. This plan, known to history as the Virginia Plan, was in the main the result of Madison’s constitutional thinking in the period before the Convention met. While most Americans expected the Convention to come up with some sort of revision of the Articles of Confederation, the Virginia Plan took an entirely different tack right at the outset. It did not begin with the Articles, but in effect scrapped them and began afresh with a completely new outline for the government of the union.
Since the Convention had been called to revise the Articles, many delegates and later many in the country were concerned that the Convention stepped outside the bounds of its mandate when it took up the revolutionary Virginia Plan. Madison had concluded that a complete departure from the Articles was required because on the two key constitutional issues—federalism and republicanism—the Articles were radically deficient. In order to be effective, the government of the union had to be able to execute its own laws directly on its own citizens. The government of the union therefore had to have its own instrumentalities of action, an executive and a judiciary, and could not persist as a merely rule-recommending body as was the case under the Articles. This insight produced the revolutionary element of American federalism: instead of serving as a corporate entity relating to other corporate entities, its member states, the government of the union would have a direct legal and political relationship with the citizens of the entire union, who would be its citizens as well as citizens of their respective states. Each level of government would have a sphere of action, or objects, or powers in which it would act on its citizens. Since the government of the union would operate directly on its own citizens, the citizens would have to have a hand in selecting the officers of the union government. The principles of the Revolution as expressed in the Declaration of Independence required no less. Thus, at least some parts of the union government must be selected by and responsible to the citizenry via direct elections; the Articles system according to which delegates to the Articles' Congress were selected by the governments of the states had to be scrapped.
The union required a proper government, that is, a government with its own legislative, executive, and judicial agencies. According to American theories of legitimacy this government, like all governments, had to be a properly republican government. That theory of legitimacy had stood in the way of constructing a strong union in the past because Americans tended to believe that only relatively small republics were possible. Only in a small republic, they believed, could the necessary popular controls and political responsibility be imposed. Madison’s studies led him to conclude that these American theories about republicanism were also false and that a different kind of republican institution could be at once legitimate according to the true principles of political right, could be implemented at the union level, and would be more effective overall as a governing institution. His Virginia Plan thus constituted a major new departure with respect to the principles for constructing a federal union and for constructing a republic.
Among other innovations in the Virginia Plan, two were particularly significant for the course of the Convention it its first phase. The principle of representation in the legislature was to shift entirely away from equal state representation to a system that would apportion representation in proportion to population, or wealth, or some composite measure of state power and significance. Proportional representation was to prevail in both houses of the proposed legislature.
The second innovation concerned the mode of selection of union officers. According to Madison’s thinking, it was crucial to exclude agencies of the state government from having any role in selecting the officers under the new constitution. Thus, the Virginia Plan proposed that the people directly elect the lower house and that the lower house select the upper house. The two houses together would select the executive. The states as political entities would have no part.
The Convention was remarkably receptive at first to the very radical departures from precedent contained in the Virginia Plan. As the result of a clause-by-clause consideration of the plan, the Convention tentatively adopted its general principles and most of its specific features as well. There were, however, some reservations and hesitations expressed over matters such as the complete exclusion of the states and the rigorous application of the principle of proportional representation throughout the government. These reservations came to a head in mid-June when William Paterson of New Jersey, which was considered one of the “small states,” introduced an alternative plan to that of Virginia. It was considerably less radical than the Virginia Plan, but also went well beyond the Articles of Confederation, testifying to the degree of consensus that had emerged around the proposition that significant change was required. The New Jersey Plan accepted the Madisonian idea that the government of the union required its own agencies of action, and it thus proposed (rather weak) executive and judicial organs. It also provided (limited) independent financial resources and military powers to the union government. At the same time, it reverted to the Articles scheme of a unicameral legislature with equal state representation, selected by the state governments.
The Convention treated the New Jersey proposals much less kindly than the Virginia resolutions and after a few days’ debate voted them down, 7 states to 3 (with 1 divided). Nonetheless, the hesitations about the Virginia Plan remained. Part of the reservations came from the smaller states, which saw that the shift to the Virginia system of representation would lead to a large loss of power and influence in the councils of the union compared to what they had in the past. Joined to that were fears of a government as large, powerful, distant, and separate from the state governments as the Virginia Plan proposed. It was not enough, however, for the Convention to adopt one plan or another by majority vote, for all the states would have to individually accept the new constitution in order to become members of the union. Those with reservations made a stand on the principle of representation and debate in the weeks following rejection of the New Jersey Plan often became harsh, with some delegates even threatening to break up the Convention. Although there were “dead enders” on both sides, cool, centrist heads pushed toward an accommodation with those who opposed the representation formula in the Virginia Plan. The result was the Connecticut Compromise of early July, so named because members of the Connecticut delegation took a leading hand in working it out. The compromise introduced the famous formula of American federalism: proportional representation in the lower house, and equal representation by states in the upper house. The latter provision reinforced the earlier decision to allow the states a hand in the selection of the representatives to the upper house. The system as a whole thus has been plausibly described as a composite, in part constituting a union of the people of the United States, in part a union of the states.
Once the difficult issue of representation was worked out, the second phase of the Convention went much more smoothly. This is not to say there were no difficult tasks to be accomplished. The Convention had a particularly difficult time constituting the executive branch, in part because of lingering fears of strong executive power; many considered a strong executive “the fetus of monarchy,” and they wished to avoid that at all costs. The Connecticut Compromise provided part of the key to the solution of the conundrum regarding the executive, for the process for selecting the president attempted to combine national and federal elements as the Connecticut principle did.
The second phase of the Convention also produced two features of the U.S. Constitution particularly relevant for federalism. The Virginia Plan had contained a very general provision for legislative power in the new Congress, but the principle of the new federalism required a more determinate division of spheres of authority between the states and the general government. The Convention worked out the enumeration of powers contained in Article I, Section 8, during this second phase.
The other important federalism-related issue of the second phase involved the relations between the different levels of government. The enumeration of powers outlined separate spheres but left inevitable boundary issues. How would the borders between the two levels of government be policed, and how would encroachments by one or the other be dealt with? The New Jersey Plan provided a key part of the solution. It had contained a provision declaring the supremacy of laws of the general government over those of states. This solution was taken into the new constitution as Article VI and in effect given to the new judiciary to enforce. Thus, the Supreme Court became “the umpire of the federal system.”
So successful had the Convention been that when, in mid-September, it finally came up with a reasonably complete draft (lacking, most notably, only a bill of rights), that draft was able to gain the consent of all the states present. That is not to say that every individual delegate approved or signed the U.S. Constitution, for some of the most prominent, like George Mason of Virginia, refused to sign. But the draft Constitution emerged from the convention with the signatures of a majority from each state and the support of Washington, Franklin, Madison, and a bevy of other prestigious leaders. It needed ratification by 9 states in order to go into operation. That such a radical break with the past could have occurred on the basis of a deliberative assembly and a series of popular ratification conventions justifies the description frequently given of the proceedings of the Convention—it was indeed “the miracle at Philadelphia.”
Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention (Boston: Little, Brown, 1966); Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1966); Calvin C. Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787 (New York: Agathon Press, 1988); Clinton Rossiter, 1787: The Grand Convention (New York: Macmillan, 1966); and Michael Zuckert, “Federalism and the Founding,” Review of Politics 48 (1986): 166–210.
Last updated: 2006