Constitutional Convention

A document that set the terms of its own adoption

Near the end of the Constitution, after the articles building Congress, the presidency, and the courts, sits one short sentence about how the whole thing takes effect. Article VII (opens in a new tab) says that ratification by the conventions of nine states is enough. The government then in force said something else. Article XIII of the Articles of Confederation (opens in a new tab) let no part of them be altered without the agreement of Congress and the legislatures of every state.

So the Constitution set aside the amendment rule of the government it was replacing, and it did so in its own text. It also routed ratification around the state legislatures, into conventions elected for that purpose. Those choices are the ground the fight was fought on, and the question under all of it was legitimacy: what made this document, and this design, worth accepting? Below is what the delegates did in Philadelphia and what the two sides said about it afterward. You will need both in the activity, where you hold the Federalist side against a delegate built to break it.

The Constitutional Convention met with a narrower charge than any of that. Congress called it to revise the Articles. Four days after reaching a quorum the delegates were debating a plan that scrapped them, and by September they had signed a new frame of government. Opponents noticed. Before anyone argued about a single clause, the Convention’s own authority was on the table.

The fight that nearly ended the Convention

Edmund Randolph opened on May 29 with what became the Virginia Plan, drafted largely by James Madison. It was not a revision of anything. It proposed three branches and a two-house legislature, with representation in both houses proportioned to population instead of given equally to each state. Virginia, Pennsylvania, and Massachusetts would have controlled both chambers.

The small states did that arithmetic immediately. William Paterson answered on June 15 with the New Jersey Plan. It kept the single house and the one vote per state the Articles had given, and it added federal power to tax imports and regulate commerce. This was not posturing. Delaware’s delegates had arrived under a commission that barred them from assenting to any change in the rule of suffrage, and they were prepared to walk out if one was adopted.

The Convention deadlocked for roughly six weeks. The way out came on July 16, 1787, in the bargain now called the Great Compromise: a House apportioned by population, and a Senate in which every state has two votes. Roger Sherman of Connecticut pressed it, and the Senate’s own account (opens in a new tab) puts the winning margin at a single vote. Neither side got what it came for. Both could stay in the room, and the rest of the summer’s work became possible.

The bargain written into Article I

Representation raised a second question the delegates could not dodge: who gets counted. The answer became the Three-Fifths Compromise, in Article I, Section 2. Seats in the House and any direct tax would be apportioned by a state’s population, and that population was reached by adding three-fifths of “all other Persons” to the free inhabitants. The phrase means enslaved people. The Constitution never uses the word.

Look at what the rule did. A state with a large enslaved population received House seats, and with them electoral votes, that its free population alone would not have earned. Those people were counted toward the state’s political weight and exercised none of it. The tax half of the clause was supposed to be the price, because the same three-fifths figure fixed a state’s share of any direct tax. Congress levied direct taxes rarely, so the price stayed mostly theoretical.

None of this was hidden in 1788. Publius took up the defense in Federalist No. 54 (opens in a new tab), and did it at arm’s length. The essay puts the argument in the mouth of a Southern advocate, who describes the enslaved person as held in a mixed character, part property and part person. Publius would not have needed that essay if the clause had been going unchallenged. It is one of the secondary jabs the delegate can reach for, and a Federalist who has never thought about it will show that in about one exchange.

One side was organized

The Federalist Papers were a campaign. Eighty-five essays, beginning in the New York press on October 27, 1787 and running into the spring, all signed Publius, all aimed at a state where ratification was in doubt. Hamilton wrote the largest share, Madison wrote several of the most-read, and Jay wrote five. Authorship of about a dozen is still argued over. Read in order, they work through the Constitution and answer objections as those objections surfaced.

Four of them will earn their keep in the debate. No. 10 (opens in a new tab) is Madison on faction. You cannot remove its causes without killing liberty, so you control its effects instead. A large republic does that better than a small one, because a majority faction has a harder time forming across distance. No. 51 supplies the structural answer, that ambition must be made to counteract ambition. No. 78 is Hamilton on the courts, which he called the least dangerous branch because they command neither the sword nor the purse. No. 84 is Hamilton arguing that a bill of rights is unnecessary here and would be dangerous, since naming rights implies a power to abridge them.

The Anti-Federalist Papers were not a campaign, and the name was fixed on them later. They are essays, newspaper letters, and convention speeches by writers who never coordinated, under pen names that have not all been settled. Brutus, usually identified as the New York delegate Robert Yates, is the closest the opposition comes to having a Publius. Brutus opened on October 18, 1787, nine days ahead of the first Federalist essay.

That first essay makes two moves. Montesquieu had held that a free republic survives only on small territory, and Brutus applies the premise to a continent. Then he reads the necessary and proper clause together with the supremacy clause and concludes the states will be absorbed, because a government that judges the limits of its own power has none. Later essays turn to Article III and warn that judges holding office during good behavior, with no appeal above them, will read the Constitution however they please.

The rest of the opposition fills in around those essays. George Mason had refused to sign in Philadelphia, and his published objections open on one line: “There is no Declaration of Rights.” The Federal Farmer letters press for a larger House and for amendments settled before ratification, not promised after it. Those writings are where the simulation’s five objections come from. The list runs: consolidation, the missing bill of rights, taxation and standing armies, the reach of the federal courts, and a House too small for the country. Each is somebody’s real argument, and each has a Federalist answer somebody really gave.

What the debate settled, and what it did not

Ratification carried, and it carried narrowly where it counted. Massachusetts ratified 187 to 168, Virginia 89 to 79, and New York 30 to 27. Several states ratified while formally recommending amendments, which is how the losing side got the thing it wanted most. The first ten amendments were ratified in December 1791, and they answer the objection Mason opened with.

Hold onto that when you take the Federalist side. You will be defending a document with no bill of rights, against an opponent whose demand for one was eventually met. On that objection the honest Federalist answer in 1788 was Hamilton’s in No. 84, and you have to make it knowing how the argument came out. That is not a weakness in the exercise. It is what arguing a real position feels like.

The activity hands you an Anti-Federalist delegate who does not concede to answers that merely sound good. The concession comes only for an answer a Federalist in 1788 could have sourced. So the preparation is the activity. Read the papers first, and the exchange becomes an argument you are having. Skip them and it becomes a quiz you are failing in real time.