Figure 2.3 Slaves as a Percentage of State Populations, 1790
Source: “1790 Census: Return of the Whole Number of Persons Within the Several Districts of the United States,” United States Census Bureau, accessed July 21, 2019, https://www.census.gov/library/publications/1793/dec/number-of-persons.html
New Jersey Plan A plan, favored by small states, to amend (rather than replace) the Articles of Confederation. It would have retained the one-state/one-vote system of voting in the national legislature, with representatives chosen by state legislatures.
Three-Fifths Compromise The decision by the Constitutional Convention to count slaves as three-fifths of a person for purposes of representation.
To lure small southern states to accept the idea of proportional representation, James Wilson of Pennsylvania, a supporter of the Virginia Plan, introduced the so-called Three-Fifths Compromise: Each slave would count as three-fifths of a person for purposes of representation. This obviously deplorable solution would give southern states strong enough influence in Congress to prevent the legislature from abolishing slavery (a possibility that was already a concern to these states), but not as much influence as they would have if slaves were fully counted. (Of course, slaves did not have the right to vote and therefore would not be represented in Congress. Women did not have the constitutional right to vote either, but white women did count as full persons toward determining the number of representatives a state would have.) On June 11, the convention endorsed the Three-Fifths Compromise by a vote of 9–2, with only Delaware and New Jersey voting against it.37
It soon became clear, however, that even with the Three-Fifths Compromise, proportional representation was not a done deal. Quite to the contrary, that issue continued to dominate discussion for weeks and threatened to deadlock the convention. Finally, another compromise ended the impasse. Devised by Roger Sherman and Oliver Ellsworth of Connecticut, this so-called Great Compromise (sometimes referred to as the Connecticut Compromise) called for a bicameral legislature, as in the Virginia Plan, with a different method for determining representation in each house and different procedures for selecting representatives in each house.
In the lower house (which eventually became the House of Representatives), the Virginia Plan would prevail:
Representation would be proportional.
Representatives would be elected by the people.
In the upper house (which eventually became the Senate), the New Jersey Plan would prevail:
Representation would be equal (each state would have two representatives).
Representatives would be selected by state legislatures.
Great Compromise The decision by the Constitutional Convention to resolve the debate over equal versus proportional representation by establishing a bicameral (two-house) legislature with proportional representation in the lower house, equal representation in the upper house, and different methods of selecting representatives for each house.
In keeping with the principle of “no taxation without representation,” all legislation dealing with raising and spending money would originate in the lower house.
The Convention debated the Great Compromise for 11 days, and, on June 29, finally passed it. The compromise ended the deadlock and resolved the fundamental question of representation in the legislature. Now the delegates shifted their attention to the other two branches of government.
Creating the Executive and Judicial Branches
The Articles of Confederation did not provide for an independent executive branch. Furthermore, most state governors were selected by the legislature, had little or no veto power over legislation, and served short terms.38 By the time the Constitutional Convention met in 1787, some believed the pendulum had swung too far in the direction of limiting executive power. For example, Thomas Jefferson had served as governor of Virginia for two years and experienced firsthand the powerlessness of that position. Though still wary of a strong executive (or governor), Jefferson wrote that his experience with the 173 members of the Virginia legislature had convinced him that “173 despots would surely be as oppressive as one.”39 This concentration of power in the legislature ran counter to the idea of separation of powers and resulted in unchecked legislative authority. Rising concern about this issue made arguments for a strong executive branch at the Constitutional Convention more palatable than they would have been immediately after finalizing the Declaration of Independence.
The Virginia Plan had called for an executive branch to be selected by Congress, without specifying its size or tenure or its specific powers. The New Jersey Plan called for a plural, rather than a single, chief executive to be selected by Congress. In discussions, some individual delegates led the charge for a stronger, more independent executive branch than that contemplated by either the New Jersey Plan or the original Virginia Plan, but the delegates remained divided on the issue of executive power through August.
The delegates eventually agreed to a single chief executive, to be called the president—a strategic choice to diffuse concerns about a strong executive. A derivation of the Latin word praesidere, president means “to sit at the head of” and “to defend.” President therefore implied passive guardianship rather than aggressive leadership. George Washington, who served a mostly passive, ceremonial function at the Constitutional Convention, had been its president. Despite agreement on what to call the chief executive, the delegates remained divided over what powers to give, and how to select, the president.40
In a compromise that helped to establish our current system of checks and balances, the convention agreed to split a number of traditionally executive powers, such as declaring war, making treaties, and appointing officials, and allow the president and Congress to share them. Thus, Congress would declare war, but the president would wage it. Presidents would negotiate treaties, but those treaties were subject to ratification by the Senate. The president would nominate ambassadors and other officials, but they could serve only if the Senate confirmed them. Nonetheless, the question remained: Who would select the president?
No issue perplexed the delegates more than determining how the president should be chosen.41 Additionally, how long should the president serve? Should he be eligible for reelection? Selection by Congress had been the default position throughout the summer. Advocates of a more powerful executive feared that this method of selection would perpetuate a model of executive subservience to the legislature. Popular election—a natural alternative—posed its own problems. First, it would give the large states an advantage over the small ones. The three most populous states had nearly as many eligible voters as the remaining ten states combined.42 Small states thus feared that they would have little influence in the selection of a president. Second, the framers assumed that voters would be ill-informed and motivated more by local interests than the common good (an example of consensus among the delegates). George Mason scoffed that letting the people choose the president would be “as un-natural” as referring “a trial of colours to a blind man.”43
The Committee on Postponed Matters finally proposed a compromise that won the support of the delegates: the president (and vice president—the first time this post had been recommended) would be chosen by an Electoral College consisting of electors from each of the states. The number of electors from each state would be equal to the combined total of that state’s representatives and senators in Congress. Each state would select these electors according to