Making the Constitution, Part IV

Compromise, slavery, and much debate

By Dave Kopel of the Independence Institute

9/28/00 11:45 a.m., National Review Online

Here is Part IV of our series on the drafting of the Constitution (click here for Part I, Part II, Part III, Part V). The delegates in Philadelphia in 1787 have agreed to the "Connecticut Compromise": each State will have two Senators; Representatives will be allotted according to population. Having overcome the largest obstacle to forming a Constitution, the delegates move on to many other key issues, including slavery. The period of "Great Debates" begins.

August 7: Gouverneur Morris argued that only land-owners should be able to vote in national elections. Since 9/10 of the people were farmers and owned land, the requirement would not be unpopular. The property requirement would be important in the future; when landless "mechanics and manufacturers" from the cities made a larger percentage of the population, they would sell their votes to the highest bidder.

We "view things too much through a British medium," replied Colonel Mason. Just because Britain had a "freehold" (landowner) rule was no reason for the U.S. to incorporate one. Everyone who has permanent attachment to society deserved the vote; merchants, monied men, and fathers were just as committed to the country's well-being as were farmers.

Benjamin Franklin agreed that the delegates should not doubt "the virtue and public spirit of our common people." In the Revolutionary War, American prisoners had refused to aid the British, while British prisoners had eagerly assisted their American captors. The delegates defeated Gouverneur Morris' freehold proposal, with only Delaware voting in favor.

August 8: South Carolina's Rutledge suggested that representatives should live in a state for seven years before being elected to Congress; it would take that long to become familiar with local affairs. George Mason of Virginia thought seven years was too long, but liked the principle. Without such a rule, rich men from neighboring states would get themselves elected through corruption.

The delegates rejected the proposal, instead merely requiring that congressmen be residents of the states from which elected. As predicted, out-of-staters did end up in Congress. In 1964, Robert Kennedy moved to New York and was elected senator by a narrow margin. New York's very first senator, Rufus King, had also moved in from Massachusetts.

In the 1820s King would urge the federal government to sell public lands, use the revenue to buy slaves from their masters, and help them move to another country. At the 1787 Constitutional Convention, King argued that Congress should have the power to regulate or eliminate the import of slaves. After all, one of the main objects of the whole Convention was to make America stronger against domestic rebellion, but slave imports made slave revolts all the likelier.

Gouverneur Morris agreed. Moreover, it was unfair that slaves should be considered in the population figures that determined representation in Congress. Slavery "was the curse of heaven on the States where it prevailed." Free states were happier and more prosperous than slave states. It was outrageous that a Georgian, "in defiance of the most sacred laws of humanity" could kidnap Africans and bring them to the U.S., and thereby "have more votes in a Government instituted for protection of the rights of mankind," than citizens of Pennsylvania, who regarded slavery as a horror.

August 10: South Carolina's Pinckney suggested that only a man with a net worth of over $100,000 should be eligible for the presidency. Congressmen and federal judges should have at least $50,000, so that they would be "independent and respectable."

"Some of the greatest rogues," replied Benjamin Franklin, "were the richest rogues." He added that the Bible said that rulers should "be men of truth, hating covetousness." (Exodus 18:21). Moreover, Europeans would be reading the new Constitution, and a property requirement would harm America's reputation among enlightened men, and would discourage poor people from emigrating to the U.S. The convention overwhelmingly rejected the property requirement.

August 16: The Convention discussed whether Congress ought to be allowed to print paper money. Congress ended up being given that power, since even those delegates who disliked paper money did not want to tie the hands of future governments.

Many in the Convention did fear that the government might just run the printing press to pay its bills, and thereby cause inflation. Revolutionary America had suffered from exactly that problem. Future presidents, including Abraham Lincoln, Franklin Roosevelt, Lyndon Johnson, and Richard Nixon proved unable to resist the temptations of printing money to pay the bills.

August 17: Elbridge Gerry of Massachusetts worried about the national army getting out of control. The army should only enter a state to put down a rebellion, urged Gerry, if the governor or the state legislature so requested. He adverted to the example of Massachusetts, where the state militia had put down a Shays's Rebellion without the aid of federal troops; federal troops would only have increased the bloodshed.

The Convention agreed, and provided that federal troops could only suppress a state's domestic violence, "on the Application of the Legislature, or the Executive."

Over a century later, in 1894, Socialist labor organizer Eugene V. Debs led a 150,000 man strike against the Pullman Palace Car Company. Against the express wishes of Illinois Governor Altgeld, President Grover Cleveland dispatched federal troops to break up the strike; predictably, heavy violence ensued.

August 20: Morris proposed that the president be assisted by a council of advisors, to include the chief justice of the Supreme Court, a secretary for domestic affairs, a secretary of finance and commerce, a secretary of state, a secretary of war, and a secretary of the marine. The president could require a secretary to provide a written opinion about any subject in the secretary's jurisdiction. Clearly the delegates thought that Cabinet officers in America would be like those in Britain, with a substantial power base independent of the president. In fact, the American president developed nearly complete power over his cabinet. His power to demand a "written opinion" is superfluous, since he can make a cabinet officer do virtually anything anyway.

The Convention also decided that no person could be convicted of treason, "unless on the Testimony of two Witnesses to the same overt Act." Benjamin Franklin thought the protection necessary because "prosecutions for treason were generally virulent; and perjury too easily made use of against innocence."

In 1953, Julius and Ethel Rosenberg were executed for selling atomic secrets to the Soviet Union. Quick and painless death was a lenient punishment for the pair; by giving Stalin the secret of the atomic bomb several years before Russian scientists could have figured it out themselves, the Rosenbergs gave Stalin the geopolitical strength to start the Korean War. The Rosenbergs' hands were stained with the blood of every Korean, American, and Chinese who died in that war.

Nevertheless, the Rosenbergs' death sentence may have been improper. Because they had operated in careful secrecy, there was no Constitutionally-sufficient proof of their treason. Instead, they were convicted of conspiracy to commit treason. This legal trick, even when employed against accomplices to mass murder like Julius and Ethel Rosenberg, degraded the rule of law in America.

August 22: The Convention returned to the slavery issue. Roger Sherman from Rhode Island, himself a strong opponent of slavery, stated that there was no need to give the federal government power to regulate the import of slaves. Several states had already abolished slavery, and "the good sense of the several States would probably by degrees compleat it." Perhaps Sherman's reasoning persuaded Northern delegates to accept compromises with slavery in order to forge the Union, hoping that the Southern states would abolish slavery on their own one day.

The view was a reasonable one; slavery was in economic decline. However, the 1793 invention of the cotton gin later rescued slavery from economic death.

Although Colonel Mason himself owned slaves, he opposed any pro-slavery compromises. He explained that slavery discouraged arts and manufactures, and would prevent the immigration of whites. "As nations can not be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, providence punishes national sins, by great national calamities." During the Civil War, President Lincoln's second Inaugural Address took up the theme again: "American slavery is one of those offenses He now wills to remove...He gives to both North and South this terrible war as the woe due to those by whom the offense came...every drop of blood drawn from the lash shall be paid by another drawn with the sword."

General Pinckney answered: South Carolina and Georgia would never join the Union if forbidden to import slaves. The more slaves, the more prosperity and trade there would be for the whole nation.

While slavery divided the Convention, there was unanimous agreement to bar Congress from passing any Bill of Attainder (an act to punish someone without judicial trial).

August 25: The Convention reached its compromise on slavery. Congress could forbid slave imports after 1808. Until then, Congress could levy an import tax of ten dollars per slave. Slavery had threatened to tear the Convention apart. In order to make the several States into one united country, the Northern delegates had accepted the temporary necessity of accommodation to slavery.


Making the Constitution

Part I
, Part II, Part III, Part IV, Part V.
 

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