Making the Constitution, Part V

Some final questions about the new government

By Dave Kopel of the Independence Institute>

9/29/00 2:00 p.m., National Review Online

Here is Part V of our series on the drafting of the Constitution (click here for Part I, Part II, Part III, Part IV). After three months, the conflicts between large and small states have been resolved. The conflict over slavery has been put aside for another generation. The Philadelphia Convention begins to decide the final questions about the new government. Some delegates begin to wonder whether the new Constitution might be a cure worse than the disease.

August 27: John Dickinson, the conservative Pennsylvania lawyer, proposed that federal judges be removable by Congress. Not a single state voted in favor of the idea. As a result, federal judges can only be removed for criminal or other bad behavior.

The independence and life tenure of the federal judiciary is one of the Constitution's most important safeguards of liberty. All the articles in the Bill of Rights would mean nothing if there were no federal judges ready to enforce them. Protecting individual rights is often unpopular. Jehovah's Witnesses who won't salute the flag, Nazis who want to march in Skokie, and civil rights workers in rural Mississippi are all despised by the majority of local citizens. If federal judges were subject to popular control, they would soon stop protecting the rights of unpopular groups.

August 28: The Convention decided that the privilege of habeas corpus(a judicial writ to bring a prisoner before the court) could only be suspended when "in Cases of Rebellion or Invasion the Public Safety may require it."

At the start of the Civil War, President Lincoln authorized his generals to arrest people when they felt it proper. One General ordered a Baltimore man named John Merryman arrested and held at Fort McHenry (ironically, the site where Frances Scott Key had composed the "Star Spangled Banner" when he was a British prisoner of war.) No one ever told Mr. Merryman why he was being held at Fort McHenry, or if he would ever be released.

Lincoln argued that he had the right to suspend habeas corpus whenever he felt like it. The Supreme Court disagreed: since the clause about habeas corpus was in Article I of the Constitution, which dealt with legislative powers, only the Congress could suspend the right of habeas corpus. The Court ordered Merryman released. Lincoln refused, and continued to hold Merryman a prisoner.

August 29: The delegates unanimously agreed that fugitive slaves who escaped to free states would be returned to their masters.

August 30: Upon the suggestion of Gouverneur Morris, the Convention accepted technical changes in the clause regarding admission of new states. The modifications would facilitate the entrance of Vermont into the Union. Actually, Vermont had been functioning as an independent state since 1777, but New York still had claims on it. Finally, in 1791, after Vermont paid New York $30,000, Vermont was admitted as the 14th state.

When should the new Constitution go into effect? After nine of the thirteen states ratified, the delegates agreed. Under the Articles of Confederation (the current system of government), it took the votes of nine states in Congress to decide an important issue, so the number seemed appropriate.

Some delegates thought the vote should be unanimous, since the Articles of Confederation specified that all it would take all 13 states to dissolve the existing Confederation. Mr. Wilson of Pennsylvania replied: "The House on fire must be extinguished without a scrupulous regard to ordinary rights."

Had unanimity been required, the Constitution would not have been adopted. Rhode Island bitterly opposed any change in the Confederation, and only ratified the Constitution after everyone else had, leaving Rhode Island a lonely and weak nation by itself. North Carolina also held out until after the new constitutional government had gone into operation.

September 6: The states agreed that the president should serve a four year term, and rejected suggestions that the president serve a six or seven year term. As Woodrow Wilson would later observe, six years is too long for a bad president, and too short for a good one.

September 7: The vice president would preside over the Senate; otherwise, "he would be without employment."

September 12: The Convention discussed putting in a guarantee of a right to trial by jury. Virginia's Colonel Mason suggested that an entire Bill of Rights should preface the Constitution. (In 1776, Mason had drafted a Declaration of Rights that was widely admired.)

Rhode Island's Roger Sherman responded that the right to jury trial was protected by state constitutions. But national laws, retorted Mason, will override state constitutions.

The Convention overwhelmingly rejected the proposal to draft a Bill of Rights. In part, the delegates were tired and wanted to end the Convention soon. This was a serious mistake; opponents of the Constitution would argue that a Constitution without a Bill of Rights would lead to despotism. In Virginia, Colonel Mason and Patrick Henry would lead the fight against ratification on precisely those grounds.

September 14: Pinckney of South Carolina and Gerry of Massachusetts offered a clause: "that the liberty of the Press should be inviolably observed." Sherman answered, "The power of Congress does not extend to the Press." The Convention rejected the proposal.

September 15: Mr. Sherman of Rhode Island had some worries of his own. Since three-fourths of the states could add amendments, what if they passed an amendment to deprive small states of their equal vote in the Senate? Under pressure from the small states, the Convention agreed "no State, without its consent shall be deprived of its equal suffrage in the Senate." Unlike all the other provisions of the Constitution, this one can never be changed, even by amendment.

The Constitution was complete, but not everyone was satisfied with the product. Elbridge Gerry found three defects especially serious:

1. The power of Congress "To make all Laws which shall be Necessary and Proper" to execute its other powers was subject to abuse;

2. There were not enough limits on the power of Congress to raise armies and money;

3. The right to trial by jury was not protected.

The Constitution came up for its final vote of approval. All the states voted aye.

The delegates adjourned to the City Tavern for a celebration. The 55 gentlemen had dinner and a few drinks: 54 bottles of Madeira; 60 of claret (a French red wine); 50 bottles of assorted beers, ales, and ciders; and 7 large bowls of heavy-duty punch. The party got so rowdy that the Tavern had to add a two-percent breakage fee to the tab!

September 17: Benjamin Franklin delivered one of the last great speeches of his career. Fellow Pennsylvanian James Wilson read the speech to the Convention, for Franklin was too weak to take the rostrum. Franklin in his address explained that he too thought parts of the Constitution imperfect; no convention, composed of imperfect men, could compose an ideal document. He doubted a better Constitution could be made, and promised to put his doubts behind him: "I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die." He asked each delegate to "doubt a little of his own infallibility," put aside his objections, and unanimously support the Constitution.

Gouverneur Morris agreed. The alternative to the new Constitution was anarchy. Aristocratic Alexander Hamilton noted that "No man's ideas were more remote from the plan than his," but the new Constitution was still better than chaos.

The Convention voted to keep its Journals secret, so that enemies of the Constitution could not make use of them.

All the delegates signed the Constitution, except for Elbridge Gerry, Colonel George Mason, and Edmund Randolph. Each would lead forces in their home state against ratification. Only after a difficult and closely-fought struggle would nine states eventually ratify the Constitution, for the opponents could point to serious defects, including the omission of a Bill of Rights.

As the last members were signing the Constitution, Benjamin Franklin looked at the President's Chair, on the back of which a rising sun was painted. He observed that painters found it difficult to distinguish a rising sun from a setting sun. During the debates, Franklin had often looked at the sun, and wondered whether it was rising or setting. "But now at length I have the happiness to know that it is a rising and not a setting sun."

The delegates left Constitution Hall. A citizen approached Franklin, and asked him what kind of government had been created. "A republic," replied Franklin, "If you can keep it."

Making the Constitution

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