Getting the history right matters to originalists who take the intent of the delegates as the touchstone of constitutional interpretation.1 When confronted with a constitutional problem, a growing number of federal judges have begun to look for guidance from the Framers. Their Constitution should be our Constitution, they say. Originalism remains controversial, however, and among those who reject it, some assert that it is impossible to derive a single (or even any) meaning from the Framers’ deliberations, given the fractious nature of the debates, the sharp conflicts among the various coalitions, and the many times the delegates changed their minds. It is at times indeed difficult to say what they meant. But it is not impossible, as I show here; and sometimes it’s not difficult at all.
Besides, the debates are so fascinating—so much the leading documents of American government—that they more than repay the effort to study them. They have the high drama of an extended argument among an extraordinary group of politically astute and educated leaders who did not know what the outcome of the debate would be. Would a unified country emerge from the Convention? Would the country fall apart, divided into separate sections, or even return to Britain? Would the American Revolution itself be undone? There are other documents from the Founding era—the Federalist Papers, the debates in state conventions held to ratify the new Constitution—but these are very much of secondary interest. The Federalist Papers were seldom read outside of New York; the principal essays were written by two people, James Madison and Alexander Hamilton, who had not gotten the constitution they wanted but who accepted it as better than nothing. Nor do the ratifying conventions provide great guidance. What the Framers had proposed at their Convention was a take-it-or-leave-it constitution that the ratifying conventions could only adopt or reject, without amendments. And since rejecting it would be so devastating, that was not on the cards.
THE CONVENTION
The delegates who gathered in Philadelphia were, in the popular imagination, a set of brilliant political philosophers who produced what a hundred years later Gladstone called “the most wonderful work ever struck off by the brain and purpose of man.”2 For the British prime minister, the delegates were supreme political theorists who produced a compelling system of government to rival that of Westminster. While taking a rather more sober view of things, many modern accounts of the Philadelphia Convention emphasize the high theory of republican government. But theorists among the delegates, people such as Madison and Hamilton, were few in number; and when the Convention was over both men left Philadelphia less than happy with the result. It was better than the alternative of the Articles of Confederation, but was nevertheless a missed opportunity.
The Constitution was more the work of lesser-known men who possessed a larger fund of practical wisdom and, compared to Madison, a much greater ability to compromise. And compromise was what was needed, for there was nothing like a consensus about the form the government would take. In particular, there was no agreement about the scope of executive power. Pennsylvania’s James Wilson remarked, “This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide.”3
The delegates sought to create something entirely new, a charter for a republican government to be formed from states loosely united under the Articles of Confederation. For models they had nothing wholly serviceable. They prized the virtues they saw in the ancient world, but saw a hodgepodge of confusing institutions when they examined the constitutions of republican Greece and Rome. They admired the constitution of Great Britain, with which they were more familiar, but had fought a revolution to replace it; and most thought it ill-suited for what they called the genius of America. They had the Articles of Confederation, which provided for what passed as a central government; but these had proved unsatisfactory, and the purpose of the Convention was to correct their defects. Finally, they had the constitutions of the states, most of which were reformed during the Revolution; but they were of limited assistance in designing a constitution for a compound republic composed of all the states.
What nearly all of the delegates did know was that they had come to the end of the line with the Articles of Confederation. These had created a “firm league of friendship” among sovereign, free, and independent states, with the thinnest of central governments. Congress could not levy taxes directly on the people, nor could it compel the states to pay their share of national expenses. It could issue paper currency—which rapidly proved almost worthless, giving us the expression “not worth a Continental.” Europe today is more of a country than America was under the Articles.
At their Convention, the delegates complained that government under the Articles had broken down. Important decisions were left unmade, and it was increasingly difficult to assemble a quorum in Congress. Whatever government might exist, said Alexander Hamilton, it was “dissolving or already dissolved.”4 At a critical moment, when the delegates seemed hopelessly divided, the country’s leading deist, Benjamin Franklin, suggested that they appoint a chaplain and pray for guidance.5 Had the Convention adjourned at that point, the country might easily have broken apart.6 Its fate, recalled Gouverneur Morris, hung by a hair.7
It was also difficult to raise funds for investment projects because the states had treated creditors shabbily, and the country was in a depression. “In every point of view,” wrote Madison in 1785, “the trade of this Country is in a deplorable Condition.”8 Perhaps things were not quite so desperate as that,9 but what the delegates saw when they looked about were states with devalued currencies and massive deficits. So deep was the crisis, so profound the financial problems, and so great the unwillingness of politicians to deal with them, that the economic difficulties were every bit as bad as those facing America today.
The problem, the Framers thought, came from the mercenary new men who now inhabited the statehouses in America. A good part of the colonial elite, especially from the northern states, had been exiled by the Revolution; many of those who were left served as delegates at the Philadelphia Convention or in the Continental Congress in New York. That left what the delegates saw as a second string of ill-educated populists to serve in the state legislatures.10 What would be needed, some thought, was a strong national government to trump them and correct these ills.
Very early in the Convention the delegates made several procedural decisions that importantly affected the outcome. On May 25, the first day, they unanimously elected Washington as its president, and appointed Virginia’s George Wythe, America’s first law professor, to chair a committee to draft the rules of procedure. Adopted on May 28, the rules impressed upon the delegates the solemnity of their undertaking. A delegate wishing to speak was asked to stand and address the president; and while one delegate was speaking the other delegates were not to read a book or speak to each other. When the meeting was over, the delegates were to stand until the president left the room.
Crucially, the delegates agreed that votes would be taken by state, with a majority of states deciding an issue, and a majority of delegates within each state deciding how the state would vote. A quorum was set at seven states, so that four states might in theory decide an issue. Nationalists from the relatively populous Pennsylvania delegation objected to giving an equal voice to small-state delegations, but were persuaded by the Virginians that this was the only way to get everyone on board.11 After this, many of the most contentious issues at the Convention were foreordained. Because small states outnumbered large states, states’ rights would be protected. And because issues were decided by majority vote, and not the unanimity that would have been needed to amend the Articles of Confederation, there was likely going to be a deal.
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