The Constitutional Convention and Centralization: The Virginia and New Jersey Plans

The Constitutional Convention was originally only authorized the strengthen the Articles of Confederation, in particular, to give the central government the power to tax and regulate foreign trade.   Instead, the Virginia delegates met before the Convention and developed the Virginia Plan, a whole new system of government that was ultimately adopted and became -- in extremely modified form -- the U.S. Constitution.  That Plan is generally considered to have been primarily the work of James Madison, but his fellow Virginian Edmund Randolph introduced it, and the plan was treated throughout the convention as Randolph's plan.

The Virginians saw only one solution to the young country's problems -- to abandon the old confederated system in favor of what is now called federalism -- a system in which both the central and local governments are independently chartered, and each exercises direct authority over individuals, including the authority to collect taxes, raise armies, and try offenders against federal (but not state) laws.  Direct authority over the individual was proposed immediately and not much disputed among the delegates, which obscures just how sharp a break it was from any previous "federated" system.  As Alexis de Tocqueville put it in the early 19th Century:

In all the confederations that preceded the American Union the federal government, in order to provide for its wants, had to apply to the separate governments; and if what it prescribed was disagreeable to any one of them, means were found to evade its claims. If it was powerful, it then had recourse to arms; if it was weak, it connived at the resistance which the law of the union, its sovereign, met with, and did nothing, under the plea of inability. . . . In America the subjects of the Union are not states, but private citizens: the national government levies a tax, not upon the state of Massachusetts, but upon each inhabitant of Massachusetts. The old confederate governments presided over communities, but that of the Union presides over individuals. Its force is not borrowed, but self-derived; and it is served by its own civil and military officers, its own army, and its own courts of justice.

Other delegates, who considered the Virginia Plan too centralized, proposed their rival New Jersey Plan, introduced by William Paterson of New Jersey, which proposed merely to strengthen the Articles of Confederation, rather than introduce a new form of government.

The differences between the Articles of Confederation, the Virginia Plan and the New Jersey Plan were as follows:

Articles of Confederation	Virginia Plan	New Jersey Plan
Unicameral legislature	Bicameral legislature	Unicameral legislature
Each state has one vote	Representation in both houses apportioned by free population or by quota of contribution	Each state has one vote
Delegates elected by the state legislatures	Lower house elected by the people; upper house elected by the lower house	Delegates elected by the state legislatures
Federal government limited to foreign and military matters, coining a common currency, and resolving border disputes among the states.  Money and troops raised by the states	Federal government to have power to legislate “in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation”	Adds to federal government the power to regulate foreign and interstate trade, tax imports, make a stamp tax, collect taxes if states fail to pay their quotas, and establish a uniform system of naturalization
All state bound by federal statutes and treaties, but federal government has no enforcement power	Congress may veto all state laws contrary to federal law	Federal law to be supreme, anything in state law notwithstanding.  Federal government authorized to use force against state that defy federal law.
No federal executive.  All enforcement powers rest with the states	Federal executive elected by the legislature	Federal executive elected by the legislature
All alterations must be approved by all 13 states	Some system of amendment called for	Some system of amendment called for

The Constitutional Convention and Centralization: Are We National or Federal

One of the outstanding achievements of the Constitutional Convention was the invention of federalism in its modern sense.  Prior to the Constitutional Convention , governments were either what political scientists today would call "unitary" (or people at the time called "national") or "confederated" (or what people at the time called "federal.")  In a unitary system, the central government is clearly supreme and local governments are mere administrative divisions.  In a confederated system, the central government is the creation of its members, joined in a common defense.  The central government has no direct jurisdiction over individuals, only over its member states.

The United States under the Articles of Confederation was a confederated government.  The central government consisted of the Continental Congress, which could legislate for the whole, but left all enforcement to the states.  Each state sent two to seven delegates to Congress, but delegation could cast only one vote, on behalf of the state.  Delegates were elected by state legislatures for one-year terms and bound by instructions by the states they represented, more like ambassadors than a true legislature.  The central government financed itself by determining how much money it needed, and assigning each state a proportionate quota of the total.  Each state was allowed to raise the money as it wished; the central government had no power to collect taxes.  The same rule applied to raising armies -- each state was required to raise troops in proportion to its population, but the central government had no power to raise forces itself.  Not too surprisingly, states regularly failed to proved their full quotas of money or soldiers.  Furthermore, although legislation passed by the Continental Congress was theoretically binding, it had no enforcement powers, so states could regularly defy its will.  The central government had full authority over foreign affairs, and sole authority to negotiate treaties, including trade treaties.  However, with no power to regulate foreign trade, states regularly defied the terms of such treaties.

It was generally agreed that this was an unsatisfactory arrangement and that a stronger central government was needed.  But what form would it take?

Introduction to the Constitutional Convention: What Was Truly Groundbreaking

Civics textbooks today are mistaken when they imply that the Constitutional Convention invented the separation of powers into executive, legislative and judicial. In fact, as we have discussed, the concept originates with Montesquieu and was well established at the time.

At the same time, the Constitutional Convention had other groundbreaking achievements that civics textbooks today overlook.

The most impressive was simply in establishing a stable popular government.  Contemporary Europe had very little to offer as models -- tiny Switzerland was about all there was.  The main examples of popular government contemporary Europeans had to look upon were in ancient Greece and Rome -- and these were examples that tore themselves apart with factional strife.  Popular government was generally seen as dangerously unstable and prone to self-destruction.

Admittedly, the Founders had an advantage over contemporary Europeans.  They had another role model to look to -- themselves.  All the colonies had practices elective, popular government to some degree, though most were only partial, with a considerable amount of authority in hands of colonial officers appointed in Britain.*  Upon declaring independence, the states threw off the colonial yoke and established their own governments.  The Convention therefore had the guidance of a century of semi-popular colonial government and a decade of fully popular state government to use as role models.

This leads to another groundbreaking achievement -- the invention of a written constitution.  The term "constitution" had long been in use to mean the general institutions and rules of government, but it differed from a "constitution" in the modern sense in not being written down anywhere so that no one could prove   what the constitution really was.  Written plans of government dated back at least to the Middle Ages, when the king could issue charters to cities, setting forth their forms of government.  This system continued in the colonies, which also received charters laying out their forms of government. All these charters, however, were issues by the king and could be withdrawn by the king.  The practice of a written plan of government, issued by the people to themselves is an American invention, invented by the states during the Revolutionary War, and adopted at the federal level in 1787.  It is often said the the U.S. Constitution is the oldest written constitution in use.  A few state constitutions can challenge its claim to the honor, but as a national constitution, the U.S. Constitution is necessarily the worlds oldest, because written constitutions had not been invented before.

Closely related to the concept of a written constitution is the idea of judicial review, i.e., that courts can declare acts of the legislature unconstitutional.  This, in turn, grows out of the older English concept of common law -- that judges are law makers.  In England dating back to the Middle Ages, courts had been required to follow precedent set down by higher courts.  Precedents, in other words, carried the force of law, meaning that judges made binding law.  (Requiring judges to follow the precedents set by appellate courts created a "common law" throughout England, thus the name common law).  Common law precedents could be overturned by legislative enactments, i.e., statutes.  But the English system made no distinction between constitution and ordinary legislation.  The will of the legislature, as set forth in statutes, always trumped the will of the courts as set forth in common law.

This was not the case in the colonies, which had charters that were higher law than ordinary legislation.  And over time, the colonists developed the concept of a "constitution" that stood above ordinary legislation.  The question then arose as to who decided which legislation was and was not constitutional.  The answer turned out to be the courts.  Contrary to what civics textbooks, this power was not illegitimately usurped by the courts, but was part of the plan from the start.  It had occasionally be practiced by state courts even before the U.S. Constitution was prepared, and was discussed in the Convention and in the Federalist Papers.  And it is an American invention.

Finally, the Constitutional Convention invented federalism, as the concept exists today -- two levels of government, both with direct authority over individuals, and neither chartered by or dependent on the other.  I will discuss this at length in my following essays on centralization.

There are three main ways one can look at the Constitutional Convention.  One is a chronological look at the process of the Convention tracing events as they took place and seeing how they Constitution developed and took shape.  Another is is to look at the Convention issue by issue, see what issues were raised, what positions were taken, and what compromises were reached.  A third is to look at the delegates as individuals and try to determine what each one believed in and stood for.

The approach I intend to take is primarily the third approach, to look at the individual delegates (at least the ones who were major participants) and see what each one believed in and stood for.  I will break it down by the three main issues at stake -- the degree of centralization of the new government, the degree of democracy it should have, and issues that divided northern and southern states.  For each of these main issues, I will give an overview and then describe the speeches and actions of the delegates, individual by individual, on the subject.

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*Details of state governments will be discussed later.  Connecticut and Rhode Island were unique in having fully autonomous and elective government, even in colonial times.

Introduction to the Constitutional Convention: An Overview

All right.  Now we can begin what I originally started this blog to discuss:  The adoption of the U.S. Constitution.

From May 29 to September 17, 1878, delegates from twelve states (all except Rhode Island) met in Philadelphia, originally intending to strengthen the Articles of Confederation.  Instead, they ended up drawing up an entire new system of government -- the U.S. Constitution, which has survived with some modifications to this day.

James Madison

James Madison, remembered as Father of the Constitution, kept detailed notes of the Convention that allows us to follow how this particular form of government was chosen and why various decisions were made.

Reading over his notes, several things catch the attention.  One is how readable the basic notes are.  Most writing from the time have a stiff and elaborate tone that makes them difficult for the modern reader to struggle through.  Perhaps it should not be surprising that Madison's notes are more accessible -- they are, after all, accounts of speeches, some planned in advance, but most relatively spontaneous.  As such, they are less formal than written language.  Another is Madison's frequent use of abbreviations.  This should not be too surprising, given that he was taking down notes as people were speaking and would naturally have trouble keeping up.  Another is that, in those days before Spellcheck, Madison's spelling and punctuation often leave much to be desired.  Given the circumstances, this is entirely understandable, but somehow there is something reassuring in the thought that the "assembly of demigods" (Jefferson's words) could still misspell their words.  Finally, the writing is often awkward, with all sorts of directions like "see note A," "here insert the speech," or "the following is a literal copy."  Like any handwritten notes, Madison's could have used some polishing.

A few observations are also in order about the convention itself.  One is on who was not present.  Thomas Jefferson was overseas, serving as Minister (ambassador) to France.  John Adams was also abroad, serving as Minister to Britain.  John Hancock, Samuel Adams, and Patrick Henry all stayed away, distrusting the general project.  Thomas Paine had returned to England.

John Dickinson

More significant is the hard-headed practicality of the delegates.  Except for occasional lapses by Benjamin Franklin, the Convention was remarkably free of utopianism or appeals to ideological principle.  The focus, instead, was on developing a system of government that would work in the real world.  Usually, this meant looking at the practical experience of England or the states and seeing what should be borrowed and what could be improved on.  John Dickinson made perhaps the strongest statement of this hard-headed outlook when he said,  "Experience must be our only guide, for reason may mislead us."  Of course, this statement should not be taken altogether literally.  Taken too literally, it could mean that nothing new should ever be attempted.  And the very act of holding the Constitutional Convention, to say nothing of the document produced, was definitely something new.  But certainly the delegates all believed that "reason" should be tempered by experience.

"Reason" in this context, means something akin to what we would call ideology or social theory.  The delegates rarely justified their actions in terms of ideology or theory alone, but certainly "reason" lurked in the background, influencing their actions.  The two main social philosophers who influenced the delegates were John Locke and the Baron de Montesquieu.  Locke is reasonably known to most modern-day Americans.  He popularized the social contract theory of government -- that government was formed when the people emerged from an anarchical "state of nature" and agreed to submit to a government to protect them. Unclear is how literally Locke mean it.  Did he believe the people mutually agreeing on a government was an actual, historical occurrence, or was it simply a metaphor for saying that that the legitimacy of government depends on the people's consent?  Whatever Locke's actual intention, the delegates intended to take him at his word and form an actual social contract.

Montesquieu

Locke, however, did not prescribe a specific form of government.  As such, he had greater influence on the Declaration of Independence than the Constitution. The outstanding influence on the actual government formed was Montesquieu.  Montesquieu was an early 18th Century French social philosopher who developed the theory of the separation of powers -- that government is divided into executive, legislative, and judicial branches, and that the survival of liberty depends on keeping these powers separate.*  This idea would have immense importance in the drafting of the Constitution, its adoption, and civic textbooks to this day.

So the groundbreaking achievement of the U.S. Constitution was not in the separation of powers (as many textbooks seem to hint today), a concept that was already in existence.  My next post will discuss what its real ground breaking achievements were.

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* Montesquieu saw liberty as compatible with hereditary monarchy, so long as the monarchy was governed by law, rather than arbitrary, and the separation of powers was maintained.  Likewise, he believed that liberty could survive either a democratic or an aristocratic republic so long as the separation of powers was maintained, but that it would fail in a republic that did not maintain such separation.