The Constitutional Convention of 1787

This year, 2026, marks the 250th anniversary of the Declaration of Independence, the moment when American patriots pledged their lives and their sacred honor to declare the American colonies independent of the British crown. By the time the Continental Congress signed that document, American blood had already been shed and the colonies were already fighting the war that would ultimately lead to the birth of the United States as an independent nation. As momentous as this revolution was, it wasn’t until over 10 years after the Declaration was signed that the revolutionary act that truly founded the nation took place: the Constitutional Convention of 1787. It’s one thing to declare your independence and earn that freedom with spilt blood and military victory; it’s quite another to make that independence meaningful and real in the form of a meaningful, functional and enduring government. And in a moment when the meaning of that government, and indeed the integrity of the the central document of the founding – the Constitution – itself, is as imperiled as it has ever been, it’s the Constitutional Convention, not the Declaration of Independence, that has real resonance for us in the ‘now.’ On this special bonus episode of Dig, join us in a little deep dive into the United States Constitutional Convention.

Sarah: This year, 2026, marks the 250th anniversary of the Declaration of Independence, the moment when American patriots pledges their lives and their sacred honor to declare the American colonies independent of the British crown. By the time the Continental Congress signed that document, American blood had already been shed and the colonies were already fighting the war that would ultimately lead to the birth of the United States as an independent nation. As momentous as this revolution was, it wasn’t until over 10 years after the Declaration was signed that the revolutionary act that truly founded the nation took place: the Constitutional Convention of 1787.

Elizabeth: It’s one thing to declare your independence and earn that freedom with spilt blood and military victory; it’s quite another to make that independence meaningful and real in the form of a meaningful, functional and enduring government. And in a moment when the meaning of that government, and indeed the integrity of the the central document of the founding – the Constitution – itself, is as imperiled as it has ever been, it’s the Constitutional Convention, not the Declaration of Independence, that has real resonance for us in the ‘now.’

Sarah: While the Declaration was a statement of intention, the Constitution is a pact, a clear and agreed upon set of central and defining laws that would both articulate and protect the freedom the revolution had won. On this special bonus episode of Dig, join us in a little deep dive into the United States Constitutional Convention.

I’m Sarah

And I’m Elizabeth

And we are your historians for this episode of Dig

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Sarah: As always, we like to begin our episodes with an acknowledgement of our sources. This episode has been banging around in my head for quite a while mostly because for the past few years I’ve been very fortunate to teach with a pedagogy called Reacting to the Past, which uses role playing games to immerse students in historical situations and events. The first game in my Reacting class is called The Constitutional Convention of 1787, written by Patrick Coby. It was also the first game that I ever played myself – I gave a very uninspiring rendition of Connecticut delegate William Samuel Johnson. The game is incredibly well written and I deeply respect Patrick Coby’s expertise and skill in the development of that game, which really informed how I think about this moment in time. For the section on the Lee Resolution and the Declaration of Independence, I used a great book called American Scripture by Pauline Maier. The bulk of the episode was drawn from Carol Berkin’s excellent book on the convention, A Brilliant Solution, which is a fabulous and entertaining introduction to the people and issues in Philadelphia in the summer of 1787. If you’re interested in the subject, I really can’t recommend this book highly enough. (Great audiobook, too!) If you want to get incredibly granular, there is also a digitized version of James Madison’s and James McHenry’s convention diaries, which gives us some of the best details on the debates, including specifics about what delegates said and argued. I have linked those primary sources and others throughout wherever possible.

Elizabeth: Let’s set the scene. The American Revolution had begun in April 1775 with the first shots fired at Lexington and Concord in Massachusetts, not far from the hotbed of the independence movement in Boston. In the following months, the Americans and British clashed again at the Battle of Bunker Hill in June, a costly and unconvincing victory for the British army. The Continental Congress convened to formally raise an army and placed George Washington at its head. Meanwhile, the British deployed more troops to try to gain the upper hand, and in August 1775 King George III declared that colonies were in active rebellion. But in 1775, it still wasn’t entirely clear what this was. The Continental Congress, the loose governing body made up of delegates from each state, was determined that the next step was formally cutting ties with the crown, but this was more complicated that we often assume today. Many colonists, including some of members of the Continental Congress, still thought that this might be a struggle for increased autonomy or better representation. Others thought it was a disagreement largely with Parliament, while still recognizing King George III as the sovereign. Still others feared that a declaration would mean chaos and unrest within the colonies. True independence didn’t just mean throwing off the yoke of the crown, it meant liberty. The Virginian planter Landon Carter wrote in his diary that “a form of Government that, by being independent of the rich men, every man would then be able to do as he pleased.” To be clear, Carter did not mean this in a positive way, but rather was articulating the fear that many wealthy and landed colonists had: the idea of liberty is dangerous. Were the colonists truly ready to declare themselves independent and face the realities of trying to rule a diverse and complex populace?  Even into the spring and summer of 1776, several state legislatures, including Pennsylvania, New Jersey, Maryland, Delaware, and New York, would not authorize their delegates to the Continental Congress to vote in favor of independence from Great Britain.

Sarah: But chaos unfolding in individual colonies and doubling-down from the King pushed the more recalcitrant state legislatures to come to the conclusion that independence was inevitable. Within individual colonies, rival patriot governments formed and drafted new governing documents. While the Continental Congress had encouraged new governments, especially in colonies like Maryland where the colonial governments more or less refused to govern, it was increasingly unclear that these new, democratic governments would  be temporary measures. In early May 1776, the Continental Congress narrowly passed a resolution, written by John Adams, that authorized new colonial governments in light of the King’s unjust actions. This was the first time the Congress laid the blame for the conflict directly at the feet of the Crown, which still seemed a step too far for some of the delegations.

Elizabeth: At the same time, though, the military conflict was making it clear that the King (not just Parliament) was intent on crushing the colonists into submission. First through rumor and then through intelligence gathering, the Continental Congress learned that the Crown was purchasing Hessian soldiers-for-hire to deploy to the colonies. Just days later, the months-long American attempt to invade Quebec to seize it from the crown failed miserably. If these defeats continued, the Americans would be absolutely doomed without some kind of foreign intervention. The hope existed already that help would come from the French, but it seemed highly unlikely that France would be willing to enter into a conflict with on the side of people who still considered themselves subject to the British Crown. Finally, King George III issued a statement after rejecting a petition from the City of London decrying the ill-treatment of the colonists and advocating that the King end the war in the colonies immediately. Much to the contrary, the King responded that he would provide “mercy and clemency” in the colonies only when the rebellion was thoroughly quashed – meaning that there was no hope of either of better terms or peace until the colonies were firmly and thoroughly crushed.^[1]

Sarah: Finally, in early June 1776, Richard Henry Lee entered a resolution, seconded by John Adams, to formally dissolve political ties with Great Britain and sever any allegiance to the British Crown. The resolution was hotly debated – several of the delegations (PA, MD, DE, NY) had been instructed by their state legislatures that they could not vote for independence, and the Congress worried that a split vote would indicate division – which would indicate weakness and a lack of serious resolve. They tabled debate for a couple of weeks with the intention of whipping up the necessary support for a definitive vote. The need for that decisive vote was becoming ever more critical. Without a clear declaration of independence from the Crown, no European power could come to their aid; supporters of Lee’s resolution argued they might even risk being partitioned by greedy European powers waiting in the wings.^[2] In the meantime, word arrived that Washington was preparing for a major attack as British ships full of reinforcements were filling the ports at Sandy Hook, New Jersey.  On June 29, Thomas Paine, under the pen name Republicus, published a letter in the Pennsylvania Evening Post that stated the time had come to formally cut ties: “Every moment that I  reflect on our affairs, the more am I convinced of the necessity of a formal Declaration of Independence. Reconciliation is thought of now by none but knaves, fools and madmen; and as we cannot offer terms of peace to Great Britain until … we agree to call ourselves by some name, I shall rejoice to hear the title of THE UNITED STATES OF AMERICA… Were Britain to make a conquest of America, I would, for my own part, choose rather to be conquered as an independent state than as an acknowledged rebel.” (Side note: that’s the first time someone called the colonies “The United States of America.” Good job, Thomas! You kicked ass!)

Elizabeth: On July 1, Congress voted on the Lee Resolution. The vote was 9 to 4, with South Carolina and Pennsvylavnia opposed, Delaware’s delegation split and therefore hung, and New York abstaining because the state legislature still had not agreed to let them consent. This was not an ideal result. Edward Rutledge of South Carolina asked for a day to try to get his delegation on board. When the Congress reconvened on July 2, the vote was very different: 12 colonies voted to adopt the resolution, with only New York abstaining again. The Lee Resolution read:

“Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”

Sarah: It was this resolution that first articulated that the fighting that was happening in the United States was not a disorganization, decentralized uprising – this was a political separation, and thus what the Crown understood as a ‘rebellion’ was in truth a revolution. It was also the first indication that the Continental Congress intended to form a new government – a “plan of confederation” – which would unite all the colonies into one entity. Through June, as the Congress was trying to get its delegates to vote to approve independence, they had authorized a committee to draft a declaration if the resolution passed, explaining the rationale for separating from Crown. The committee was made up of Thomas Jefferson, newly returned to the Congress after his mother’s death and his own period of illness, the irascible John Adams, Roger Sherman of Connecticut, and Robert Livingstone of New York. It was Jefferson, ultimately, that largely wrote the declaration, between June 11 and June 28. The committee then reviewed the document and offered a few changes. When Lee’s resolution passed on July 2, the Congress then turned its attention to Jefferson’s declaration. Between July 2 and 4, they made changes and alterations, then as we know, authorized what became known as the Declaration of Independence on July 4, 1776. (Another fun side note: the first draft of the declaration that was printed on July 5 was slightly different from the more well-known ones printed after July 19. On July 19, Congress passed another resolution to add the line “The unanimous declaration of the thirteen United States of America” at the beginning of the document. Not only did this formalize the name United States of America, it also called it “unanimous,” since New York finally got its shit together (or perhaps was roundly shamed) and ratified the Declaration in the weeks after it was adopted.)

Elizabeth: It might seem beside the point to have a document declaring independence when the colonies was already at war, but it was these words that created the United States. The Crown was no longer trying to quash the unrest of a disorganized group of rebels causing domestic troubles at the far reaches of the Empire; it was at war with a sovereign nation. A sovereign nation, too, could negotiate with military allies, seek credit, and establish trade relationships. Then again, if the United States lost this war, it also marked the signers of the Declaration out as traitors to the Crown who almost certainly would be tried and executed.

Sarah: But being a sovereign nation also means that you must have a form of government – it’s not enough to declare yourself independent, you have to be prepared to self-govern. In June, after the Lee resolution was entered and tabled (in hopes of bringing the delegates to unanimity) and the committee of five was formed to draft the declaration, Congress authorized another committee, this one to draft a constitution for the new nation. (Yes, they were getting ahead of themselves a teeny bit, but they were confident they would get the Lee resolution passed, even if it wasn’t unanimous.) The committee was chaired by John Dickinson of Pennsylvania, who had been the most vocal opponent of passing Lee’s resolution and the Declaration of Independence. In fact, after the Declaration was passed, Dickinson chose not to sign the document and, believing it was inappropriate for someone who had not signed the document to remain in the Continental Congress, resigned and left to return to Delaware.

Elizabeth: But before he left, Dickinson helped to shape the first governing document of the United States: the Articles of Confederation. The Articles officially named the new nation the United States. But the name was very literal – it was a union of states. For instance, the document read: “the said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare…” and so forth. The Articles of Confederation established a confederacy of separate entities – the states- with a very weak central government. The most important unit of the government was the state, not the federal, government. Take, for instance, Article 2: “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in Congress assembled.” It did establish a congress, which was unicameral, and allowed one vote for each state delegation of 2-7 members. Unsurprisingly, there was also no executive, only a role akin to speaker of the house which presided over congress.  But the federal government was extremely limited in what it could actually do – it could declare war and handle international diplomacy, but couldn’t raise an army. If it needed one, it was only entitled to request troops from the states. And critically, the federal government also couldn’t raise taxes without consent of the states.

Sarah: But for a Continental Congress who was made up of delegates who were beholden to skeptical state legislatures and were extremely distrustful of a strong central power (ie, the Crown), the Articles of Confederation was a good solution for the moment, and it was ratified in 1781. And in the next couple of years, the Americans managed to defeat the British army and seal their independence (and the founders avoided execution) in the Treaty of Paris in 1783. (Forgive us for not giving more details here, but we want to keep focus on the governing documents – please watch the amazing new Ken Burns doc if you want more details on the war itself.) And in the wake of the unlikely victory, Americans were eager to get to the lives they imagined in freedom – as historian Carol Berkin describes it, average American farmers and merchants were looking forward to going about their business and making profits. Those along the western edge of the country, in the Appalachian mountains, were looking forward to the freedom to stretch out and settle new lands. New England fishermen would finally be able to fish in the territories restricted by Great Britain northward along Newfoundland. But each of these potential benefits of independence also revealed the shortcomings of the Articles: the fishermen in New England and settlers along the Appalachians were terribly vulnerable without the strong British army and navy to offer them protection. Merchants and farmers came to realize that they had lost their markets in the British Caribbean, and had lost their access to British lines of credit.

Elizabeth: On top of that, there were even more pressing problems for the Confederation Congress to grapple with. The British army, which had been required to give up its American outposts as a condition of the Treaty of Paris, refused to leave. Located along the western border, these forts allowed the British to act more or less like shit-stirrers, arming  indigenous tribes who understandably wanted to protect their own borders by attacking potential white settlers. When the Confederation Congress tried to get the British army to leave, they agreed to go only if the Americans paid off outstanding debts to British creditors. This dilemma only underscored how ineffectual the Articles of Confederation (and thus the Confederation Congress) really was. They couldn’t raise an army to protect their own citizens or to force the British out, and they also couldn’t raise taxes to pay off those outstanding debts. When Algerian pirates started seizing American trade vessels and holding their crews ransom, the Confederation Congress could do nothing to secure their return or pay their ransoms. Overseas, diplomats abroad in Europe couldn’t convince foreign governments to offer lines of credit to the US when they had no evidence that the Confederation Congress could pay it back. The Confederation Congress’s inability to do basically anything led a real malaise among the members of Congress themselves. By 1786, attendance dipped so much that Congress regularly could not meet quorum.^[3]

Sarah: So despite all the sacrifices and risks of the revolution years, the new United States found themselves in dire straits again. It was clear to at least some of the leading thinkers that something had to be done. While a loose confederacy with strong states rights had been what got the support of the Continental Congress during the war, some Americans had been thinking about other possibilities. As early as 1780, while serving in the Continental Army, Alexander Hamilton was beginning to articulate his ideas for a government with a strong, rather than nonexistent, central government. Just a few years later into the 1780s, with the Articles faltering, the idea that a different form of government might be necessary gained popularity. In 1786, spurred by how difficult and frustrating interstate commerce was under the Articles, delegates from Maryland, Virginia, Pennsylvania and Delaware agreed to a convention to discuss the regulation of commerce. When the plan for a discussion caught on, the organizers figured it might be helpful to extend the invitation further and broaden the scope of the meeting The meeting, which was held in September 1786 and which came to be known as the Annapolis Convention, ended up not bringing delegates from all the states, but those that it did bring were the ones that already more or less agreed that the Articles were flawed and needed to be replaced. This group, who came to be known as the ‘nationalists,’ used this Annapolis Convention as a kind of planning meeting. How could they convince the rest of the states that the Articles needed to be drastically overhauled? The Annapolis Convention produced a report, largely written by Alexander Hamilton, that recommended to the Confederation Congress that they call for a meeting to revise the Articles of Confederation.

Elizabeth: The Congress hadn’t had time to consider Hamilton’s call before there was yet another crisis. In the late summer of 1786, a mob of armed and frustrated farmers in Massachusetts, led by veteran Daniel Shays were rampaging across the state and threatening state courthouses. These farmers were disaffected because of the economic downturn after the war, which made it impossible for them to pay their property taxes and mortgages, especially those who had speculated on new land during the war when demands for grain were at an all-time high. Shays Rebellion, as it came to be known, was pretty quickly put down, but it had a dramatic impact. While Thoms Jefferson (serving as a diplomat on behalf of the Congress in France) wrote that “a little rebellion now and then is a good thing,” most at home in the states saw it as an example of the kind of threat that the Articles of Confederation was ill-prepared to handle. For the nationalists, this was precisely the reason why a strong central government, which could raise an army and taxes and which might have an energetic economy, was so desperately needed. In February 1787, the Confederation Congress passed the following resolution: “That in the opinion of Congress, it is expedient, that on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia…”^[4]

Sarah: And thus – only 35 minutes into this episode – the the Constitutional Convention was called for the summer of 1787. Each state determined who to send to the convention as their delegates. It was an interesting group, to say the least. Perhaps most eager to be there was James Madison, a short, balding, and serious-looking 36 year old experienced politician and lawyer. Madison arrived in Philadelphia ready to go – in fact, he came armed with his own draft of a new form of government. Madison was determined not just to revise the Articles, but rather replace them. His proposal became known as the Virginia Plan. More on that in a moment. Other characters were also sent to Philadelphia to represent their states. I won’t mention all of them here for a couple of reasons – first, because there were a lot of them, second, because many delegates came and went throughout the convention, and third, because frankly, a good number of them didn’t make a huge impact on the convention and weren’t all that interesting. But there was Madison’s fellow Virginians, George Washington, Edmund Randolph, which along with several others made for a particularly powerful delegation. South Carolina sent the brash young Charles Pinckney, one of the youngest and most energetic delegates at the convention, along with his second cousins John Rutledge and Charles Coatesworth Pinckney. Pennsylvania sent a very large and powerful delegation that included the large and boisterous Gouvernor Morris and very old and wise Benjamin Franklin, both notorious for being ladies men. Maryland sent the irascible and alcoholic Luther Martin and the diarist James McHenry, who wrote down much of what happened at the convention for posterity. Delaware sent John Dickinson, back for another round of government-drafting. New Jersey sent the very lawyerly William Paterson, and Massachusetts sent Elbridge Gerry and Rufus King. New York sent three people who all disagreed with each other – Alexander Hamilton, John Lansing, and Robert Yates, creating one of the most troubled delegations. Notably, every state in the union sent a delegation except for Rhode Island, which completely refused to take part, earning their nickname Rogue’s Island.

Elizabeth: It was a lot of personalities and clashing political philosophies inside the Pennsylvania state house that hot, muggy summer. Madison and Washington arrived early – travel in the late 18th century was extremely slow – but the two used the extra time to bond with the Pennsvylanians, creating a kind of nationalist super-group that was later able to throw their weight. When enough delegates arrived to make a quorum, the convention officially began on May 25, 1787. It began with formalities. George Washington was easily chosen as the presiding officer of the convention, and Major William Jackson, who had served with Washington as a staff officer (and who would later serve as secretary to Washington during his presidency) was chosen to be the secretary of the convention, a staff position. Then came a debate about the rules of the convention. Washington would make determinations about who spoke if there was a disagreement or if two delegates tried to speak at once; no one would be allowed to speak on the same topic more than twice. Any delegate who behaved badly or who was disrupted could be called to order and removed. Perhaps more importantly, though, they wanted to protect the secrecy and account for the difficulty of the work ahead of them: they would be sworn to absolute secrecy during the convention – no one would be allowed to access the official record to make their own copies, even for their own record, and speaking to the press or public was absolutely barred. They also agreed that preliminary votes would not be permanently recorded so they could debate further, reconsider issues, and vote again.

Sarah: When those rules had been agreed upon, Edmund Randolph of Virginia seized the floor. He recounted the many failings of the Articles of Confederation – no one was at fault, Randolph said (probably because he was looking at dour John Dickison, author of the first draft of the Articles staring him down), but nevertheless the document was absolutely putting the nation into a state of crisis. At the end of his speech, he produced Madison’s proposal: the Virginia Plan, fifteen resolutions that would “correct & enlarge” the Articles of Confederation. But the next morning, when the convention resumed, Randolph asked to set aside the first resolution of the Virginia plan, which had called for the Articles of Confederation to be “so corrected and enlarged as to accomplish the objects proposed by their institution.” Instead, he boldly suggested instead a different resolution: 1. that a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & genl. welfare.

2. that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient.

3. that a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary. The motion for postponing was seconded by Mr. Govr. MORRIS and unanimously agreed to.

Elizabeth: In other words, Randolph was proposing that instead of revising the Articles of Confederation as they were authorized to do by the Confederation Congress, they should instead draft an entirely new plan of government, one that was national, consisting of three branches, legislative, judicial, and executive. This caused quite the stir. Was Randolph suggesting a complete overthrow of individual state governments in favor of a national one, Charles Pinckney asked? Charles Coatesworth Pinckney asked an even more pressing question: was it actually legal for the convention to take this step? What authority did they have to draft a new plan of government, when they had been sent only to revise the Articles? Roger Sherman of Connecticut shared this view, but his worry was practical: if the convention took this step without clear authority, was it possible that the states would then simply reject their work when they concluded? Despite these concerns, the convention overwhelmingly voted to pass Randolph’s resolution – only Sherman’s Connecticut delegation voted against.

Sarah: This is where the historian Carol Berkin poses an interesting question: why had the Articles been so easily overthrown? After all, Charles Coatesworth Pinckney had a good point: they had been authorized by Congress to revise, not replace, the Articles. And yet within the first days of the convention, they had easily passed a resolution agreeing to draft a new form of government. Well, one pretty simple reason is that the people who were seriously opposed to any significant change had more or less boycotted the convention and just weren’t there. Those who had come to Philadelphia agreed that the Articles had problems that needed to be addressed at the very least. Further, while some of the men at the Convention were hostile to the creation of a stronger national government, they weren’t, shall we say, super stars. They weren’t particularly persuasive or charismatic or influential people, and just didn’t have all that much sway with the gathered convention.

Elizabeth: But while the delegates were willing to admit they needed a new form of government, many of them still had the same fears that many of their fellow Americans agreed on: any kind of consolidated power was to be distrusted, even if it was held in the hands of a representative government. Much of the debate that followed Randolph’s resolution, which would hone in on each of the subsequent proposals in the Virginia Plan, would center on the question of representation. Confederalists – those who believed in small federal governments and strong state governments – worried about how this new central government would ensure that the desires and needs of the people were protected. Nationalists – those who favored a strong central government that superceded state governments – worried how the federal government would protect against the whims of the uneducated and untrustworthy ‘people.’

Sarah: After Randolph’s resolution was adopted, debate was structured around Madison’s Virginia Plan. We’re going to sketch out the general debates, but we will generally hold off on explaining every single vote and proposal in chronological order. It would take too long, first of all, but it would also be really messy, because the debate didn’t always follow a clean and clear order. The delegates debated something, took a vote, then would return to it again like three days later – so trying to detail all of that would make us all crazy.

While the plan sketched out a plan of government, it left out all the tricky details. For instance, resolution 7 read: “Resolved, that a National Executive be instituted, to be chosen by the National Legislature for the term of ___ years….” Term lengths, which a seemingly small and specific detail, was incredibly meaningful to the philosophical differences between the nationalists and their opponents. A long term might provide stability and continuity, but it also contained the possibility of despotism. Short term limits could be more chaotic, but they also might provide the people with greater opportunity to exert their will on their representatives. Resolution 7 also focused most of its text on how an executive would be paid. To us today, it might seem odd to focus so much attention to the issue of the president’s paycheck, but at the time, whether the executive would be paid and how and how much were huge questions – could a paycheck undermine the position’s role as servant of the people? Or, on the flip side, if he was not paid at all, would the executive be left open to bribes in order to meet their financial need?

Elizabeth: Debate did actually begin with Resolution 7 and the question of the executive. James Wilson, seconded by Charles Pinckney, proposed a single executive, which inspired great debate about the nature of the role. Elbridge Gerry of Massachusetts argued that since the executive office needed to rise above simple sectional favor, the office should actually be a triumvirate – three people, each representing a different region to ensure that one region wouldn’t be favored unfairly. (So imagine a New Englander, a Southerner, and a Westerner in the executive office.) On the other hand, Roger Sherman argued that the executive position should be more or less a figurehead created to do the will of the national legislature, and thus the question of who should serve or how many should serve should be left to the legislature to decide. The debate can be summarized by the exchange between James Wilson and Edmund Randolph. Randolph, who had entered the Virginia Plan into debate, worried that a single executive would amount to “the foetus of monarchy.” This same problem dogged other aspects of the executive question, like who would elect the executive (the people? electors? the states? The legislature?) or how long they would serve. To this, Wilson argued that rather than the first step toward monarchy, a single executive represented “the best safeguard against tyranny.”^[6]

Sarah: Debate bogged down. The only thing they could agree on was that there should be some form of executive branch. Indeed before the question of the executive was fully resolved, John Dickinson raised just how complex and intertwined each resolution of the new plan was. Dickinson rose to argue that the executive should be subject to removal from office by the individual state legislatures, hoping to ensure that significant power remained in the hands of the states. When this was rejected out of hand by Madison and Gouvernor Morris, Dickinson switched gears to question what the purpose of a national legislature would even be in this system of government – was it to represent the states, or the people?  Emboldened, Dickinson veered entirely off course to draw attention to the Virginia Plan’s call for a two-part legislature, with one house representing the states and the other the people directly.

Elizabeth: Dickinson was largely ignored, and while debate on the presidency produced some interesting ideas (like a single term of 7 years with no eligibility for reelection), they could not come to a solution and adjourned, no doubt frustrated. When they reconvened after the Sunday recess, it seemed clear that Dickinson had been sorta right – they couldn’t move on until they addressed the issue of the legislature. As Carol Berkin explains, this was inevitable – “because the government the delegates envisioned was made up of interconnected parts, the smallest tinkering or adjustment to one required changes in another. The branches had to be able to cooperate, but they also had to be able to restrain one another. The tools of restraint given to one branch depended upon the dangers inherent in the powers given to another. Thus the convention moved back and forth, making adjustments here in response to changes there, revising in the face of revisions, learning on a daily basis that they could not anticipate the consequences of every decision and so had to be ready to amend and alter what had once seemed permanently in place.”^[7]

Sarah: Moving to discuss the legislature did not improve the contentious nature of the debates, though. The nature of the legislature seemed to exacerbate every one of the most serious philosophic and regional difference that divided the delegates. The most strident nationalists, especially Madison and Hamilton, they believed strongly that representation in the national legislature must be based on population rather than equality – the United States, they believed, “was a government of the people not of the states.”^[8] This would meant that states with more people would have more representation. But some delegations, like Delaware, had been expressly instructed by their state legislature that they could not support any measure that did not give all states equal voice in a federal legislature. After all, the needs of a tiny state like Delaware might entirely be swept aside by a large state like Virginia or New York under a population-based system.

Elizabeth: But despite the opposition of small staters like Dickinson and New Jersey’s William Paterson, the convention voted on June 11 to adopt a system of representation based on proportional representation. Not to be subdued, on June 15, William Paterson presented his own plan of government, which came to be known as the New Jersey plan. Paterson, a serious and almost puritanical jurist, believed that nothing was more important than the rule of law – and he believed that what the convention was doing was inherently illegal. After all, they had been authorized to revise the Articles, not replace them – his Resolution 1, reminding them of the task of revising the Articles, would replace Randolph’s resolution calling for a new form of government. Beyond that, Paterson’s plan kept a unicameral system (as in the Articles) in which each state delegation had one vote. It created an executive board, which would be elected by the state legislatures, and gave the federal legislature the authority to raise some taxes and place duties on imports, which aided the smaller states. Ultimately, the New Jersey plan did not actually gain enough support to actually supplant the Virginia plan, but it did help to draw battle lines between the nationalists and “the confederalists.” (Note: They weren’t really called that at the time as far as I have been able to determine, but since this is a useful name that is used in Patrick Coby’s ConCon game, I think it makes sense to use it here just for the sake of clarity.)

Sarah: The failure of the New Jersey plan helped the small-staters and confederalists opposed to the Virginia plan to realize that if they wanted to get protections for small states into the new form of government, they would have to find compromise. Thus that weekend, during the Sunday recess, a group of small-staters met to draft a compromise for a bicameral legislature that would have one house based on proportional representation and a second based on equal representation for each state in the union. This became known as the Connecticut Compromise. The compromise, though, only sent the delegations down other rabbit holes. Should the upper house (the senate) be like the House of Lords in Great Britain, made up of only the most wealthy property-holding citizens, as Gouvernor Morris advocated? Or should it be made of the intellectual elite? Should they have long or short terms? William Paterson and Roger Sherman, de facto leaders of the small-state confederalists, though these arguments were beside the point, because, they argued, the real purpose of a equal upper house was to represent the states equally, not to reflect the superiority of the men who served in it, such as in the House of Lords.

Elizabeth: Then came a two-day long, droning but intense speech from Maryland’s Luther Martin, who made good points about the importance of states rights but was also unfortunately probably drunk, which did not at all help the small-staters position. In Madison’s diary, he summarized Martin’s points and then wrote, “this was the substance of the residue of his discourse which was delivered with much diffuseness & considerable vehemence.” Instead, by the time it concluded on June 28, the speech inspired Madison to double down on proportional representation. Things were at a breaking point. Likely concerned that the convention might stall out or worse, fail, Benjamin Franklin called for a chaplain to be present at the beginning of the next day’s debates to open the session with a prayer, saying “I … beg leave to move that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that Service.” Carol Berkin makes the point here that given Franklin’s history as a deist, this seemed to indicate that things were especially dire.^[9]

Sarah: Even this proposal caused a ruckus – Hamilton pointed out that if the convention were to suddenly have clergy marching in and out, it might indicate to the rest of Philadelphia that things were not going well at the convention. Hugh Williamson of North Carolina also pointed out that they couldn’t very well bring in clergy: “the true cause of the omission [of clergy] could not be mistaken; the convention had no funds.” (lol) They adjourned, again in frustration, but the next day took the vote on proportional representation – while Maryland cancelled out its vote by dividing and Connecticut, New York, New Jersey, and Delaware all voted nay, the proposal was successful. But a crisis was not averted. It was not uncommon for delegates to come and go from the convention. In fact, after the vote for proportionality, Hamilton left the convention to head back to New York. New Hampshire’s delegation, which would have helped the small-state cause, hadn’t even arrived in Philadelphia. Small staters tried to pass a motion that would have Washington send a letter to New Hampshire demanding that they send their delegates at once, but large state nationalists defeated it. Frustrated, small staters threatened a walk-out, which would all but doom the convention. It was this threat that finally convinced James Madison that compromise would likely be the only way to save the convention.

Elizabeth: While the convention avoided an organized walk-out, many of the delegates did leave at the end of June, leaving the nationalists in a weakened position. Several of the delegates to the convention were also congressmen in the Confederation Congress, and thus left to return to New York City where Congress was going into session. Thus, when the time came to vote on equal representation in the senate, the vote was tied five to five. Ultimately, the vote came down to Georgia’s delegation. That was determined by Abraham Baldwin, a Yale-educated Georgian. Baldwin’s concerns for Georgia made the success of the convention absolutely necessary: he wanted a strong central government, especially one designed by southern slave owners like Madison, to protect the southern interest in the institution of slavery; he also worried about the threat of the Spanish and Native Americans on Georgia’s western border. While Baldwin was a nationalist, he saw the absolute necessity of appeasing the small-staters in order to save the convention – thus, he voted with the small staters on equal representation in the Senate. His fellow Georgia delegate voted with the nationalists, and thus Georgia’s vote was hung and the vote a useless tie.

Sarah: This near-miss at a failed vote (and of a failed convention) amounted to the small-staters flexing their muscle. Nothing would be accomplished without appeasing them. In response, Oliver Ellsworth of Connecticut used it as another opportunity to turn the convention’s attention to the Connecticut Compromise. This time, Ellsworth called for a committee made up of one delegate from each state to consider the compromise and find a solution to the problem of representation. The committee was dominated by strong small-staters supportive of the compromise, including Roger Sherman (one of its architects), Luther Martin, and William Paterson. While the rest of the convention enjoyed a little break for the fourth of July, the committee drew up the final version of the Connecticut Compromise: the bicameral legislature would have a lower house with representatives determined by proportion, and an upper house with equal representation. Further, the compromise gave large states and slave holding states extra incentive. All bills of appropriation (funding bills) would have to originate in the larger, proportional lower house, a boon to the large states. And the representation in the lower house would include 3/5ths of all enslaved people in the determination of the population of the slaveholding states, a gift to the southern states.  The Connecticut Compromise was successful. On July 16, the committee of the whole (meaning all the delegates at the convention) voted 5-4 to adopt the Connecticut Compromise. The nationalists suffered mostly because the entire New York delegation, always a little untrustworthy, had simply left the convention. 

Elizabeth: Your ears may have pricked up at one of the key components of the Connecticut Compromise: the 3/5ths compromise, which gave slaveholding states the benefit of having 3/5ths of their enslaved property count toward their representation in Congress. This, as we know now, would be hugely impactful – it ensured that the southern states, which had larger enslaved populations that only grew through the 19th century, always had the upper hand in the federal government. But at the time, the compromise wasn’t all that controversial. Slavery, however, did pose a problem. Many of the delegates were anti-slavery, including Gouvernor Morris, who called it a ‘nefarious institution,’ and Rufus King and George Mason, who both gave speeches calling for the end of the institution. Most of the delegates, though, believed that the convention wasted its time (and risked too much) by attacking slavery in this way. After all, they mostly agreed with Oliver Ellsworth, who argued that “slavery in time will not be a speck in our country.”^[10] The delegates mostly believed that slavery would die out on its own, and because of that, for the most part, they chose not to debate whether or not slavery was immoral or should be abolished. Instead, debate about slavery mostly focused on the importation of slaves through the transatlantic slave trade. Major slaveholding states, like South Carolina, wanted assurances that the slave trade would continue without opposition, and that imported slaves would not be taxed. This gave delegates from nonslaveholding states a bargaining chip to use to get South Carolina’s vote on other issues. Roger Sherman of Connecticut and John Rutledge of South Carolina forged a compromise: Connecticut relied on exports, which it did not want to have taxed; South Carolina desired a ban on taxation on imported slaves.  Ultimately, that compromise proved successful, and both groups got what they wanted.

Sarah: After the vote on the Great Compromise, most of the delegates were exhausted and getting antsy to return home. Oliver Ellsworth wrote home that he believed many of the men simply wished to be reunited with their wives: “I believe the older men grow more uneasy [the longer] they are away from their wives.”^[11] When they picked up the issue of the executive branch again on July 17, everyone was running out of energy. Older alliances also held less sway, and newer ones, forged during the difficult days of preceding debate, took their place. Even the Virginia delegation, which had been such a powerhouse at the beginning of the convention, was more and more divided, and Edmund Randolph and George Mason inching closer to defecting entirely. So when debate began again, it was tired and irritated delegates trying to hash out things they’d already discussed ad nauseum. Gouvernor Morris warned that if the Congress voted in the executive, “it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title of appointment.”^[12] James Wilson pointed out that this seemed awfully silly when they had just agreed on the nature of the Congress themselves to try to prevent such cabals. Did they not trust their own creation? The alternative to a vote by the Congress was a vote from the people – and certainly that also had its perils. The people could be swayed by powerful, “active and designing men,” in the words of Charles Coatesworth Pinckney. They also weren’t to be trusted when it came to judging the fitness of an executive, according to George Mason: “it would be unnatural to refer the choice of a proper character for chief Magistrate to the people as it would to refer a trial of colours to a blind man.”^[13] Luther Martin had another reason to oppose a popular vote: the Society of Cincinnati, the fraternal organization created by Revolutionary War veterans to commemorate their service and safeguard the republic. It was basically just a club, but one with powerful members: Washington and Hamilton were both founding members, along with Henry Knox, Charles Coatesworth Pinckney, Freidrich Wilhelm von Steuben. This cabal would no doubt control the election of the executive, Martin argued – though his worries were largely dismissed.

Elizabeth: A number of different proposals were offered and rejected: a proposal that would have created a set of electors who mediated a popular vote; a proposal that the judiciary branch share in a veto process; an executive with one seven-year term without the possibility of reelection. By the end of the month, the conversation ended up more or less in the same place it had started based on their earlier debates at the beginning of June: the executive would be singular, not a group, and would have one, nonrenewable seven year term of office. On July 26, likely completely exhausted, the convention handed over all their votes to a Committee of Detail made up of Nathaniel Gorham, John Rutledge, Edmund Randolph, James Wilson and Oliver Ellsworth, who were tasked with organizing and writing out everything the convention had agreed to up to that point. Everyone else took a vacation. When they returned on August 6, the committee presented the rest of the delegates with its report, and the convention spent the next several weeks picking at it. Everyone’s patience was wearing perilously thin. On August 18, John Rutledge aired his frustration. According to Madison’s diary, Rutledge rose and “remarked on the length of the session, the probable impatience of the public and the extreme anxiety of the many members of the Convention to bring the business to an end; concluding with a motion that the Convention meet henceforward precisely at 10 am and that precisely at 4 pm the President adjourn the House without motion for the purpose.”^[14] Everyone agreed to these strict new hours, probably hoping for a little relief from the unending work.

Sarah: Rutledge’s plea, though, didn’t prevent the convention continuing to be bogged down in details. They kicked their notes back to the Committee of Detail, which added in a “privy council” to help the president in decision-making. Vote after vote rejected the idea of the popular election of the executive. By August 29, Edmund Randolph had had enough – Madison’s notes record that Randolph “doubted whether he should be able to agree to” this new governing document, should it even be finalized. Finally, at the end of August, the convention founded a Committee on Postponed Matters (lol) which included one member of each state delegation, except New York, who had still abandoned the proceedings. Powerful delegates Madison, Morris, Sherman, and Dickinson were all members. As Carol Berkin points out, it was basically just a mini convention. With the larger group no longer working together effectively, the committee took up all the remaining issues with less bloviating and more efficiency. 

Elizabeth: The necessity to get something done and not allow the convention to fail was more important than ever. While the secrecy rule was still in effect, the public still speculated on the work of the convention. James Madison wrote to Thomas Jefferson, “nothing can exceed the universal anxiety for the event of the Meeting here.”^[15] The Committee met for over about a week before presenting a report that brought together many of the proposals that had been presented and shot down over the many weeks. An executive – the president – would be elected by popular election, though the polar vote would go through electors chosen by the state legislatures. The person with the second highest number of votes would be made the vice president – which was an interesting addition that hadn’t really even been discussed before. This innovative new compromise seemed to come out of nowhere, but years later, John Dickinson took credit for it, claiming that the committee was exasperated when he suggested that the people would not accept the authority of an executive unless they had the power to vote for them directly. Moved by this idea, he claimed, the rest of the committee immediately stopped to write up the idea into what became the electoral college. Then again, James Wilson had been suggesting something similar for weeks – but either way, the idea made its way into the report presented to the convention in early September. There were still details to finalize: debate over the next few days focused on the exact process through which the Congress would preside over the election of the president, including who would certify the ballot,  how it would respond if there was no clear winner of the election, and how it would respond if the president committed some abuse of power and needed to be removed from power. With these matters finalized, the Convention created one more committee: the Committee on Style and Arrangement, including William Samuel Johnson, Alexander Hamilton, Gouvernor Morris, James Madison, and Rufus King, who would revise the style and arrange the articles” of the new document.

Sarah: It was Gouvernor Morris who took the messy notes and votes of the previous months and whipped them into a powerful document that became known as the Constitution, complete with a preamble that explained the purpose and meaning of the plan of government. Just one small but incredibly important change that Morris wrought was to change the first line, which had previously read “We the people of the states of New Hampshire, Massachusetts, Rhode Island and the Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia.” In Morris’s version, it simply read, “We, the People of the United States.” He also articulated the purpose of the document: “in order to form a more perfect Union, to establish justice, insure domestic tranquility, to provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” The new document also was organized out into articles and subsections. The legislature was described in Article I, with each section describing the roles and powers of that branch. Article II describes the executive, and Article III the judiciary. The following articles enumerate the relationship between the federal and state governments, and determine the process for ratifying the document to supplant the Articles: it would take 9 of 13 states to agree on the Constitution for it to take effect.

Elizabeth: Perhaps most importantly, the new document, smooth and polished and elegant, did not reveal any of the acrimony that went into its creation. When the public or representatives of other nations looked at it, all they saw was unity, organization, and confidence. That’s not to say that the convention was all in perfect agreement – there were still changes to be made and arguments to be had. George Mason was especially distressed that the document did not include an enumeration of the rights of citizens. No one agreed with him and his vote on the matter failed easily. Over the final days of debate, three delegates rose to explain that they would not support the document: Edmund Randolph, George Mason, and Elbridge Gerry all declared they could not vote for nor sign the finalized plan of government, and called for a renewed convention to do it all over again. The call for a second convention was met only with exhaustion and exasperation and a vote on it was rejected. With that vote over, the delegates approved the revised version of Morris’s document. On September 17, convention secretary William Jackson read out the new Constitution to the full convention. When he was done, James Wilson stood to read out a speech by Benjamin Franklin, too elderly to deliver it himself.

Sarah: Franklin admitted he didn’t love everything in the document, but urged his fellow delegates to approve it anyway. It was amazing, Franklin said, that the men assembled had been able to take their many competing ideas and prejudices and still produce such a remarkable document. “It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die….On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”

Elizabeth: Even then, there was a scramble to make changes – Nathaniel Gorham tried to change the population ratio, and George Washington (otherwise very quiet at the convention) agreed, and the motion was passed. After some final back and forth about who would and would not support the final document, they held a vote – and the Constitution of the United States was adopted. Then, after months of hard work and acrimonious debate, the delegates (well, those who were there and who didn’t refuse!) signed the document. And with that, the delegates to the Constitutional Convention packed up, and probably with a sigh of relief, left the city of Philadelphia.

Sarah: The work was far from over. The Constitution was meaningless if it wasn’t agreed to and ratified by the state legislatures – and every delegate knew that would be another serious battle. We won’t go into the details of that fight here, but it was not easy. This is the period in which James Madison, John Jay, and Alexander Hamilton wrote the 85 Federalist Papers under the pen name Publius. The essays explaining the reasoning and intention behind each aspect of the Constitution, written to convince the public to support the document. It was also the era of the Antifederalist papers, the essays written trying to dissuade the ratification of the Constitution, written by various opponents of the document. (We aren’t as confident in who the real authors of those papers were, but they likely included folks like New Yorkers Robert Yates and George Clinton and the discontented framer Elbridge Gerry. George Mason’s request for enumerated rights was one of the key problems the Antifederalists identified, and ultimately the Bill of Rights – the first ten amendments to the constitution that outline the rights of individual American citizens – was added to ensure its ratification. The Constitution was finally ratified in 1789, with recalcitrant New York acting as the “eleventh pillar,” the state whose ratification helped create a supermajority in favor of the new Constitution.

The Constitution is the bedrock foundation of the United States. It determined the form and processes of the federal government and outlines the rights that each American is entitled to – the right to freedom of speech; the right to bear arms; the right to trial; the right to due process. But the Constitution was also from the beginning a document that captured the inherent flaws of this country. For instance, it’s a document that does not include the word ‘slavery’ or ‘slave,’ but which is nevertheless a proslavery document. It helped to create the horrific internal slave trade, in which the breeding of enslaved people became a business unto itself. It ensured the return of fugitives from bondage to their masters under the Fugitive Slave Clause. And, of course, it provided additional representation to states with enslaved populations – which was directly responsible for the Slave Power that would emerge in the first half of the 19th century, in which the planter elite of the slaveholding south were able to essentially bend the federal government to their will.

Elizabeth: It was also a document, and we really want to stress this, that was written by a bunch of dudes. In August 1787, Thomas Jefferson wrote to John Adams that the group assembled in Philadelphia was a “assembly of demigods,” an oft-quoted letter that is often used to underscore the idea that the framers of the Constitution weren’t really people but deities. But they weren’t. The Constitution was written by a group of men who were themselves just people: they got annoyed, they made compromises, they left early, they gave speeches drunk, they wanted to get outta there so they could go home and have sex with their wives. And they were also well-read, incredibly intelligent, and deeply thoughtful. While some politicians and jurists today sometimes claim that in order to truly serve the law, we must strictly read the Constitution based on what these ‘demigods’ wrote or intended, it’s important to remember that the founders were people who wrote a document that they believed would be good enough to be ratified and would surely continue to be shaped over time.

Sarah: Another much-quoted tale, recorded in the convention diary of Maryland delegate James McHenry,  about the convention goes like this. As Benjamin Franklin, the senior statesman of the gathering, was leaving the convention after the document had been adopted and signed by the delegates, was approached by Elizabeth Willing Powell, a well-connected Philadelphia socialite, who asked him what the result of the convention had been. “Well, Doctor,” she asked, “what have we got, a republic or a monarchy?” Franklin, with his typical wit, replied: “A republic, if you can keep it.” That story is deployed constantly and is a particularly beloved anecdote of American conservatives – conservative Supreme Court justice Neil Gorsuch even wrote a book that used the phrase as its title. But I think we are in a moment where we should think critically about Franklin’s quip. A republic – if we can keep it. We live in an era when the integrity of the Constitution is as vulnerable as it has ever been. The framers that we just discussed feared one thing more than anything else – depositism, the abuse of consolidated power – and they crafted a document that they fervently hoped would protect America and Americans from that threat. The framers were flawed people, but I do think they would be frightened and disturbed by our current reality. A republic – if we can keep it.

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Bibliography

Berkin, Carol. A Brilliant Solution: Inventing the American Constitution. Harcourt, 2002.

Maier, Pauline. American Scripture: Making the Declaration of Independence. Knopf, 2012.

Coby, Patrick. The Constitutional Convention of 1787: Constructing the American Republic. University of North Carolina Chapel Hill Press, 2022.

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Notes

^[1] Pauline Maier, American Scripture: Making the Declaration of Independence (Knopf, 2012), 41.

^[2] Pauline Maier, American Scripture: The Making of the Declaration of Independence (Vintage, 1997), 108. 

^[3] Carol Berkin, A Brilliant Solution: Inventing the American Constitution (Harcourt, 2002), 20-21.

^[4] Berkin, A Brilliant Solution, 29. 

^[5] Berkin, A Brilliant Solution, 46.

^[6] Berkin, A Brilliant Solution, 87.

^[7] Berkin,A Brilliant Solution, 95.

^[8] Berkin, A Brilliant Solution, 99.

^[9] Berkin, A Brilliant Solution, 107.

^[10] Berkin, A Brilliant Solution, 113.

^[11] Berkin, A Brilliant Solution, 114.

^[12] Berkin, A Brilliant Solution, 117.

^[13] Berkin, A Brilliant Solution, 121.

^[14] Berkin, A Brilliant Solution, 137.