2.5 Creating the U.S. Constitution & Bill of Rights (1787–1789)

The Philadelphia Convention and the Conflict Over Representation (1787)

In May 1787, 55 delegates from twelve states (Rhode Island declined to attend) assembled at the Pennsylvania State House in Philadelphia for the Constitutional Convention. Presided over by the revered George Washington, the assembly included prominent leaders such as James Madison ('Father of the Constitution'), Alexander Hamilton, Benjamin Franklin, and Roger Sherman.

Although tasked solely with revising the Articles of Confederation, delegates quickly decided to discard the Articles entirely and construct a new national framework. The central debate immediately focused on parliamentary representation and the balance of power between large and small states.

Competing Plans for Governance

• The Virginia Plan: Introduced by Edmund Randolph and drafted by James Madison, this nationalist proposal favored populous states. It advocated for a powerful bicameral legislature in which representation in both houses would be based proportionally on state population or wealth. The lower house would be elected by the people, and the upper house selected by the lower house. It also proposed an executive and national judiciary chosen by Congress.
• The New Jersey Plan: Introduced by William Paterson, this plan represented small-state interests. It retained the unicameral legislative structure of the Articles, where each state received one equal vote, while granting Congress enhanced powers to tax and regulate interstate commerce.

The Great Compromise (Connecticut Compromise)

Deadlock over representation threatened to dissolve the convention. Roger Sherman of Connecticut offered a decisive solution known as the Great Compromise (or Connecticut Compromise). It established a bicameral Congress that satisfied both factions:

1. House of Representatives: Lower chamber based on proportional representation (population size), pleasing large states. All revenue and tax bills were required to originate in the House.
2. Senate: Upper chamber based on equal representation, granting two senators per state regardless of size, pleasing small states. Senators were initially chosen by state legislatures (until the 17th Amendment in 1913).

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Sectional Compromises: Slavery and Commerce

Slavery proved to be the most contentious sectional issue, dividing Northern states embracing gradual emancipation from Southern states whose plantation economies relied heavily on enslaved labor.

1. The Three-Fifths Compromise: Southern states insisted that enslaved individuals be counted in state population totals to inflate their representation in the House, but excluded when calculating federal tax burdens. Northern delegates countered that if slaves were legal property, they should not count toward political representation. The compromise stipulated that five enslaved individuals would count as three free persons for both congressional representation and direct federal taxation.
2. The Commerce and Slave Trade Clause: Northern states sought federal regulation of interstate and foreign commerce, while Southern states feared federal export tariffs on agricultural cash crops (tobacco, rice) and congressional interference with the transatlantic slave trade. Delegates agreed that Congress received authority to regulate interstate and international trade and ban export taxes, but was prohibited from interfering with the importation of slaves for 20 years (until 1808). Additionally, a Fugitive Slave Clause required free states to return escaped enslaved persons to their owners.
3. The Electoral College: To select the President, delegates created an indirect electoral system to insulate the executive branch from raw popular passions. Each state received electoral votes equal to its total number of Representatives and Senators.

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Structural Mechanics: Separation of Powers and Federalism

The Constitution incorporated Enlightenment principles, most notably Baron de Montesquieu's concept of the separation of powers. Government authority was distributed across three co-equal branches, bound together by an intricate system of checks and balances:

• Legislative Branch (Article I): Enacts laws, controls federal spending, declares war, and holds impeachment powers.
• Executive Branch (Article II): Led by the President, enforces federal laws, serves as Commander-in-Chief, makes treaties, and appoints federal judges subject to Senate confirmation.
• Judicial Branch (Article III): Led by the Supreme Court, interprets federal laws and the Constitution.

Under Federalism, governance was divided between the national government (granted enumerated/delegated powers like coining money and declaring war) and state governments (retaining reserved powers under the 10th Amendment). The Supremacy Clause (Article VI) established that the Constitution and federal laws constituted the supreme law of the land.

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The Ratification Debate: Federalists vs. Anti-Federalists

Article VII specified that the Constitution would take effect upon ratification by 9 of the 13 states in special state conventions.

• Federalists: Supported ratification. Composed of urban merchants, large landowners, and nationalists, they argued that a strong central government was essential to maintain order, protect property, promote commerce, and command respect abroad. To persuade voters, Alexander Hamilton, James Madison, and John Jay penned 85 persuasive essays published under the pseudonym Publius, known as The Federalist Papers.
  • Federalist No. 10 (Madison): Argued that a large republic was superior at controlling the violence of factions (special interests), as diverse geographic interests prevented any single majority from tyrannizing the nation.
  • Federalist No. 51 (Madison): Explained how internal checks and balances protect liberty: 'Ambition must be made to counteract ambition.'
• Anti-Federalists: Opposed ratification. Led by Patrick Henry, George Mason, and Richard Henry Lee, they feared that a distant central government would swallow state sovereignty, recreate British monarchy, levy oppressive taxes, and maintain standing armies. Their paramount objection was the absence of a Bill of Rights guaranteeing explicit protections for individual liberties.

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The Bill of Rights and Constitutional Settlement

To break ratification deadlocks in key states like Massachusetts, Virginia, and New York, Federalists pledged that the first order of business under the new government would be the addition of a national Bill of Rights.

New Hampshire became the crucial ninth state to ratify in June 1788, making the Constitution legally binding. In 1789, James Madison drafted a series of protective amendments in the First Congress. Ten of these amendments were ratified by the states in 1791, officially becoming the Bill of Rights:

• 1st Amendment: Freedoms of speech, press, religion, assembly, and petition.
• 2nd & 3rd Amendments: Right to keep and bear arms; protection against quartering troops.
• 4th–8th Amendments: Protections for the accused (search and seizure, due process, double jeopardy, self-incrimination, jury trial, prohibition of cruel/unusual punishment).
• 9th & 10th Amendments: Protection of unenumerated rights; reservation of non-delegated powers to the states or the people.

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Comparison of Constitutional Plans and Compromises