Making the Constitution, Part III

The battle over representation

By Dave Kopel of the Independence Institute  

Making the Constitution
Part I, Part II, Part III, Part IV, Part V.

9/27/00 1:15 p.m., National Review Online

Here is Part III of our series on the drafting of the Constitution (click here for Part I, Part II, Part IV, Part V). Although the Convention has agreed on much of the outline for the three branches of government, the whole effort may collapse over the issue of representation in Congress. Large states want representation based on population or wealth; small states want each state to have an equal vote.

July 2: Mr. Ellsworth of Connecticut proposed that each state have one vote in the Senate. The motion was defeated. Had delegates from New Hampshire and Rhode Island been present, the motion would have passed. Both states, however, had refused to attend the Convention at all, because they feared any increase in federal power.

July 5: Having taken two days off for Independence Day celebrations, the delegates resumed work. If the convention failed, and the United States fragmented into several small nations, European powers might re-colonize America. Gouverneur Morris of Pennsylvania pointed to the problems of Germany, which was fragmented into 300 small nations that allied with foreign powers and intrigued against each other.

Morris also predicted that soon the interior territories of America — Ohio, Kentucky, Alabama, and beyond — would become the most populous. Reasoning that the interior settlers would not hesitate to get America into wars, and that the main burden of war would fall on the Atlantic states, Morris proposed that the Constitution guarantee the Atlantic states a majority of delegates in Congress. In 1812, Morris' fears came true. "War hawks" like Henry Clay of Kentucky led America into war with Britain, a war in which Washington D.C. was burned to the ground, and the international commerce of New England devastated.

July 6: All tax bills, proposed Dr. Franklin, should originate in the House of Representatives, which would be closer to the popular will than the Senate. Franklin's plan made it into the Constitution, but the Supreme Court seems not to have noticed. The 1982 tax hike originated in the Senate, yet the Supreme Court refused to declare it unconstitutional.

July 11: Virginia's George Mason argued that when Western states were admitted to the Union, they must be treated as equals. He and other delegates realized that making the West into an inferior zone would provoke the same resentment that Americans had felt when Britain refused to treat the colonists as equals.

Throughout the summer, the delegates had been arguing about whether the number of slaves should affect a state's vote in Congress. Mr. Butler of South Carolina explained that representation should be based on wealth; and since a South Carolina slave was just as productive as a Massachusetts freeman, South Carolina's slaves entitled her to more votes in Congress.

If slaves were counted as wealth, replied Morris, why weren't other forms of wealth counted also?

July 12: Mr. Davie, a Revolutionary War hero from North Carolina, demanded that slaves count for at least 3/5 of a free person in determining representation. North Carolina would walk out of the Convention rather than accept anything less.

July 13: Pennsylvania lawyer James Wilson thought the whole discussion misguided. Representation should not be determined by property, for property was not "the sole or the primary object of Government and Society. The cultivation and improvement of the human mind was the most noble object."

As the delegates failed to agree on representation, the Convention neared collapse. Some thought that the large states should just go ahead and confederate with each other, leaving the obstinate small states all alone.

Madison thought the whole disagreement silly; the real lines of division in the future, he predicted, would not small states vs. large states, but free states vs. slave states.

July 16: The Convention temporarily adjourned so that the delegates could meet in small groups to discuss representation.

July 17: How to elect the president became the new topic. Some wanted him chosen by the people. Others thought that the people would be easily misled, and that Congress should choose. But congressional choice might make the president nothing more than a pawn of Congress.

July 18: All the delegates wanted to make federal judges strictly independent of Congress. To that end, they wanted Congress to be unable to decrease the salary of sitting judges. But what if inflation (which had been very high during the war and immediately after) made a certain salary in dollars lose all its buying power? Madison suggested that judicial salaries could be fixed to a standard quantity of "wheat or some other thing of permanent value." Franklin noted that the even the value of wheat would change as society changed.

July 20: A few delegates proposed that the president not be subject to impeachment, for he might be over-run by a power-hungry Congress. The majority of delegates, though, were more afraid of an out-of-control president. "Shall any man be above Justice?" asked Colonel Mason. "Above all shall that man be above it, who can commit the most extensive injustice?"

July 23: Once the Convention agreed on a Constitution (if ever), when should it take effect? After ratification by all 13 states? Mr. Gorham thought not; Rhode Island seemed determined to block the Constitution no matter what. New York might resist too, since it taxed interstate commerce that passed through New York, and would lose that authority under the new Constitution.

July 25: Elbridge Gerry of Massachusetts, who had been one of the strongest opponents of too much democracy, warned that popular election of the president was "radically vicious." The ignorant masses would be misled by "one set of men dispersed throughout the Union and acting in Concert to delude them into any appointment." Such a group already existed: the Order of the Cincinnati (a quasi-aristocratic society of officers in the Continental Army and their eldest male sons).

Instead of popular election, the Convention set up the electoral college system of choosing Presidents — a method which quickly turned into a convoluted popular election system. In any case, the country soon chose as its leader the president of the Order of the Cincinnati: George Washington.

July 26: Colonel Mason proposed that the national capital not be in the same city as any state capital. Otherwise, local issues would have too much influence in the national debate. The idea was well-received, except by those who worried that Philadelphia and New York, both of which hoped to become the capital, would be unhappy.

The Convention also agreed to a plan that assured the nation a capital. According to the "Connecticut compromise," in the House of Representatives, each state would have delegates according to population; in the Senate, each state would have one vote. This compromise solved the most difficult issue of the Convention. For the next several weeks, the delegates would engage in the "Great Debates," on the details of the Constitution, knowing that they had produced a system of government that all could agree to.

Making the Constitution
Part I, Part II, Part III, Part IV, Part V.

Share this page:

Kopel RSS feed Click the icon to get RSS/XML updates of this website, and of Dave's articles.

Follow Dave on Twitter.

Kopel's Law & Liberty News. Twice-daily web newspaper collecting articles from Kopel and those whom he follows on Twitter.

Author page on Amazon.

Search Kopel website:

Make a donation to support Dave Kopel's work in defense of constitutional rights and public safety.
Donate Now!

Nothing written here is to be construed as necessarily representing the views of the Independence Institute or as an attempt to influence any election or legislative action. Please send comments to Independence Institute, 727 East 16th Ave., Colorado 80203. Phone 303-279-6536. (email) webmngr @

Copyright © 2018