The Constitutional Convention of 1787
Background and the Crisis of the Articles of Confederation
The Constitutional Convention of 1787 convened in Philadelphia against the backdrop of a failing national government. The Articles of Confederation, ratified in 1781, had created a weak central government that lacked the power to tax, regulate interstate commerce, or enforce its laws directly upon individuals. Congress could requisition funds from the states but had no means to compel payment; by 1786, the national government was effectively bankrupt. The impotence of the Confederation government was laid bare by Shays’ Rebellion (1786–1787), an armed uprising of indebted farmers in western Massachusetts led by Daniel Shays. When the Massachusetts militia suppressed the rebellion with difficulty, and the national government could provide no assistance, the demand for fundamental constitutional reform became irresistible. George Washington wrote to James Madison that the rebellion confirmed “the necessity of a more powerful government than the one we have.”
The Annapolis Convention of September 1786, called to address trade disputes among the states, produced only a handful of delegates. Alexander Hamilton and Madison used the occasion to issue a report calling for a general convention to meet in Philadelphia in May 1787 to revise the Articles of Confederation. Congress reluctantly endorsed the call, and every state except Rhode Island eventually sent delegates.
The Delegates and Their Competing Interests
The fifty-five delegates who assembled at the Pennsylvania State House represented an extraordinary concentration of legal and political talent. George Washington presided, lending the proceedings his immense prestige. James Madison, who arrived with a comprehensive blueprint for a new government, earned the title “Father of the Constitution” through his meticulous notes of the debates. Alexander Hamilton advocated for a powerful central government modelled on the British Constitution. Benjamin Franklin provided diplomatic wisdom and served as the Convention’s elder statesman. Gouverneur Morris, a brilliant Philadelphia lawyer, drafted the final text with an elegance that endures.
The delegates divided along several axes. Large states (Virginia, Pennsylvania, Massachusetts) favoured proportional representation in the national legislature; small states (New Jersey, Delaware, Maryland) insisted on equal representation. Northern and Southern states clashed over slavery, commerce, and the counting of enslaved persons for representation. A third axis divided nationalists—who sought a powerful central government capable of acting directly upon individuals—from those who wished to preserve significant state sovereignty.
The Virginia and New Jersey Plans
Edmund Randolph presented the Virginia Plan on May 29, 1787, drafted largely by Madison. It proposed a supreme national legislature with two houses, both apportioned by population; the lower house elected directly by the people, the upper house elected by the lower from nominees by state legislatures. The national legislature would possess broad legislative authority, including the power to veto state laws. The plan also proposed a national executive and a national judiciary, both chosen by the legislature. This was not a revision of the Articles of Confederation but a complete replacement.
The small states resisted fiercely. William Paterson of New Jersey presented an alternative on June 15: the New Jersey Plan proposed revising the Articles rather than replacing them. It retained a unicameral Congress with equal representation for each state but added congressional powers to tax and regulate commerce, and provided for a plural executive and a supreme court. The plan rejected national veto power over state laws.
Debate between the two plans consumed June. The nationalist position prevailed on June 19 when the Convention voted to proceed with the Virginia Plan as the basis for discussion, but the small states remained intransigent on the question of representation.
The Great Compromise
The impasse threatened to dissolve the Convention. On July 2, a committee of one delegate from each state was formed to break the deadlock. Roger Sherman of Connecticut proposed what became the Great Compromise (or Connecticut Compromise): the lower house would be apportioned by population, while each state would have equal representation in the upper house. The Convention adopted the compromise on July 16 by the narrow margin of five states to four.
The compromise established the fundamental structure of Congress that endures today: the House of Representatives, elected by the people and reapportioned after each decennial census, responsive to popular opinion; and the Senate, with two members per state chosen by state legislatures (until the Seventeenth Amendment in 1913 mandated direct election), serving as a check on popular majorities. This bicameral structure was defended by James Wilson as combining “the great and aggregate interests” with “the states as political societies.”
The Three-Fifths Compromise and the Commerce Clause
Slavery pervaded the Convention’s deliberations, though the word itself appears nowhere in the Constitution. The most contentious issue was whether enslaved persons should be counted for purposes of representation and direct taxation. Southern states sought full counting for representation but not for taxation; Northern states took the opposite position. The Three-Fifths Compromise, proposed by James Wilson and Charles Pinckney, resolved the dispute by counting enslaved persons as three-fifths of a person for both purposes. This formula, derived from an earlier Continental Congress proposal, gave Southern states disproportionate power in the House and the Electoral College until the Civil War.
The Commerce Clause of Article I, Section 8, Clause 3—granting Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”—became one of the most consequential provisions of the Constitution. At the Convention, its scope was debated primarily in connection with the slave trade. Southern states demanded protection for the importation of enslaved persons. The resulting compromise, embedded in Article I, Section 9, forbade Congress from prohibiting the slave trade before 1808. In exchange, the Commerce Clause was left without a prohibition on taxing exports, a concession to Northern commercial interests. The Slave Trade Clause and the Fugitive Slave Clause (Article IV, Section 2) embedded slavery into the constitutional framework that would require a civil war to dismantle.
Article II: The Presidency and the Electoral College
The creation of the executive branch proved second in difficulty only to the representation dispute. The Convention debated whether the executive should be single or plural, elected by Congress or by the people, and eligible for re-election. Early proposals favoured a single executive chosen by Congress for a single seven-year term. The emergence of the Electoral College as the mechanism of presidential selection was a compromise between congressional election and direct popular election. Each state would appoint electors equal to its total congressional representation, meeting in their states and voting for two candidates. If no candidate received a majority, the House of Representatives would decide, with each state delegation casting a single vote.
The Electoral College served multiple purposes: it insulated presidential selection from direct popular democracy, preserved a role for the states, and, through the three-fifths ratio, gave Southern states additional influence. The executive was granted the veto power (subject to override by two-thirds of both houses), the power of appointment with Senate advice and consent, treaty-making power, and the role of commander-in-chief. The President was made removable only through impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Article III: The Federal Judiciary
Article III established the judicial branch with remarkable brevity, vesting judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Convention rejected proposals for state court jurisdiction over federal questions and for a council of revision that would allow judges to veto legislation. Federal judges were granted life tenure during “good Behaviour” and guaranteed salaries that could not be diminished, ensuring judicial independence.
The jurisdiction of the federal courts extended to all cases arising under the Constitution, federal laws, and treaties, as well as admiralty cases and controversies between states or citizens of different states. The Convention did not explicitly establish judicial review—the power to invalidate laws inconsistent with the Constitution—but the Supremacy Clause (Article VI) and the extension of judicial power to cases arising under the Constitution provided the foundation that Chief Justice John Marshall would later build upon in Marbury v. Madison (1803).
Ratification and the Bill of Rights
The Convention concluded on September 17, 1787, with thirty-nine of the forty-two remaining delegates signing the document. Article VII provided for ratification by state conventions in nine states. The ratification struggle that followed was the most searching public debate on constitutional principles in American history.
The Federalists, led by Hamilton, Madison, and Jay in the Federalist Papers, argued for ratification on the grounds that the new government possessed only enumerated powers, that separation of powers would prevent tyranny, and that the extended republic would control faction. The Anti-Federalists, including George Mason, Patrick Henry, and Robert Yates, warned that the Constitution created a consolidated government that would destroy the states and that the absence of a bill of rights endangered liberty.
Ratification succeeded by narrow margins in key states: Massachusetts (187–168), Virginia (89–79), and New York (30–27). The promise of amendments to protect individual rights was critical to securing ratification in several states. The first Congress proposed twelve amendments, ten of which were ratified by 1791 as the Bill of Rights. These amendments—guaranteeing freedom of speech, religion, press, assembly, the right to bear arms, protection against unreasonable searches and seizures, due process, jury trial, and reserving unenumerated rights and undelegated powers to the people and the states—completed the constitutional architecture of 1787 and addressed the most potent Anti-Federalist objections. The Constitutional Convention thus produced not merely a frame of government but a framework for constitutional politics that has endured for more than two centuries.