The Final Days of the Convention

After three months of intense partisan divides and drawn-out battles, the Constitutional Convention entered its final phase—a phase which lasted about two or three weeks and was marked both by hurry and relative harmony. The delegates were eager to get home, and they completed their work with unusual dispatch. Perhaps, in some cases, even too much dispatch. Most of the delegates were pleased with the final plan as it was delivered by the Committee of Style, but there were three outspoken critics whose defection cast a pall over these final days. Nonetheless, most of the Framers left Philadelphia optimistic that their plan would succeed, even though they knew that they had their work cut-out for them in the ratification debates. The battle for ratification was indeed a struggle, and its outcome was by no means certain. The unexpected and pervasive demand for a bill of rights took many of the delegates by surprise. Many states, when they ratified the new plan of government, attached a statement expressing their expectation that the First Congress would address certain perceived defects through the Constitution’s amendment process, and they helpfully suggested which amendments Congress should propose to the states. James Madison took on that charge, partly as a personal duty and partly to prevent the job being hijacked by opponents to the Constitution.  He proposed a set of amendments to the House, and and did not slacken his efforts until he saw the amendment process through both Houses. Most of the Constitution’s former detractors were satisfied when the states ratified the first ten amendments, though several staunch Antifederalists had hoped to seem many more substantive changes to the Constitution. And with the new Bill of Rights, the Constitution could finally be said to unify a new nation. 

The Last Two Weeks: Haste, Bustle, Polish, and Dissent

The delegates’ activities in the last two or three weeks of the Convention showed evidence of their unanimous wish to put an end to the bickering and go home. Numerous minor disagreements cropped up, but none of them could compete with the broad consensus to finish the remaining business quickly. The last of the “grand bargains” which had roiled competing factions was the 20-year compromise, which was not fully resolved until August 29. After that, the delegates entered into a phase of relative harmony that lasted until the end of the Convention. Unfortunately, their pervasive harmony and impatience to be done led to a few regrettable decisions. Immediately after the Deep South and the Northeastern States had struck their bargain regarding slave importations and navigation acts, the Deep South demanded further protections for recapturing runaway slaves who fled into neighboring states. In response, the Fugitive Slave Clause was duly passed with unanimous votes, almost no objections, and only minor alterations in the wording. In later years, Northern States would come to rue their delegates’ hasty concurrence with the demands of the Southerners, believing that they should have better represented the interests of free states and the cause of freedom. The phrasing of the Fugitive Slave Clause would prove to be a moral, political, and legal nightmare. 

The process of electing the president was also worked out in the last days of the Convention. This question had divided the delegates for months, and proposals similar to the Electoral College had already been defeated decisively earlier in the summer. Yet, in light of the persistent dissatisfaction with the prevailing choice to have the president selected by the legislature, the Committee for Postponed Matters presented the plan for an Electoral College in the Convention’s waning days.  The Framers passed this complex proposal with few changes (although its perceived defects would require amendment by 1804).  

The Question of a Bill of Rights

The delegates also stumbled when it came time to decide whether to include a bill of rights in the new Constitution. The subject did not even emerge until September 12, when George Mason, who was one of the three delegates who refused to sign the Constitution, expressed his wish to add one. Mason tried to reassure his colleagues that, “with the aid of the state declarations, a bill might be prepared in a few hours.” The Framers, however, no doubt rightly suspected that such a complex issue, broached this late in the summer, might keep them locked in debate for many more weeks. The charm of Philadelphia had worn off long ago, and many decided they would rather be home for the autumn. After the briefest of exchanges, the motion lost on a tied vote. This decision to forgo a bill of rights, which was probably made with little forethought, or even much thought at all, was a fateful misstep.  The Federalists would learn during the ratification period that many of their detractors (and even many of their friends) believed a bill of rights was essential to the Constitution. 

The Committee of Style

However, these final days were not all haste and disorder. In the second week of September, the delegates decided that their sundry resolutions needed to be reworked into a more organized and elegant shape by a Committee of Style, and they chose a stellar five-man team for the job: William Samuel Johnson, Alexander Hamilton, Gouverneur Morris, Rufus King, and James Madison. Hamilton had been absent for most of the second half of the Convention, but the rest of the members were all trusty stalwarts. And every member was brilliant in his own way. The Convention was still meeting during the day, so the members of the Committee spent their evenings drafting a final Constitution. They pored over the 23 articles that the Committee of Detail had prepared, combined with the innumerable amendments and committee reports that had been accepted since August 6, and they transformed the jumble of resolutions into a coherent plan of government.

Decades later, Madison gave most of the credit to one preeminent writer in the group: “The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris.” Whereas the “phraseology” had principally been governed by the resolutions that had been proposed, altered, and adopted, Madison believed “there was sufficient room for the talents and taste stamped by the author on the face of it.” Morris’ greatest contribution was probably his composition of the Preamble, for his version had departed significantly from the Committee’s report. Then followed seven neatly arranged articles. The first three articles described the arrangement and powers of the three branches of government: the Congress, the presidency, and the judiciary. The fourth article described the relations of the states to one another and to the new federal government. The fifth article described how to amend the new Constitution. The sixth article guaranteed the payment of the old debts; asserted the supremacy of the federal government when exercising its legitimate powers; and prescribed oaths or affirmations to support the new Constitution. And the seventh article gave a very terse description of what would constitute ratification of the new Constitution. The Committee was ready to have their draft printed on September 12, after barely more than three days’ labors, so that each member could study its design and wording carefully in the Convention’s final few days. Madison was thoroughly pleased by the Committee’s choice of Morris as their draftsman: “A better choice could not have been made, as the performance of the task proved.” 

Randolph, Mason, and Gerry Refuse to Sign

Although the last two weeks had primarily been stamped by haste and harmony, the last stage was still taking too long to suit the impatience of some members. On September 11, William Livingston complained to John Jay that he was losing hope of returning according to his earlier plan  “by reason of there being certain creatures in this world that are more pleased with their own speeches than they can prevail upon anybody else to be.” Livingston might have had the Convention’s three dissenters in mind when he wrote his letter. The day before, all three non-signers of the Constitution—Edmund Randolph, George Mason, and Elbridge Gerry—had voiced their increasing alarm at the shape the document was taking. The advocates of the Constitution may have found it tedious to listen to the repeated objections of the dissenters at this late hour. Mason, however, felt that their concerns were being silenced and ignored, and that this assembly had turned into a cabal in its last days. He later confided to Jefferson that he had been “discouraged” from voicing his personal objections to the Constitution, “by the precipitate, & intemperate, not to say indecent manner in which the Business was conducted, during the last Week of the Convention.” The indecent treatment, he went on to say, was occasioned by the coalition that had been formed between the Deep South and the Northeastern states over the 20-year compromise over the slave trade. 

On September 10, Randolph stated the various reasons why he thought the plan “would end in Tyranny.” And on September 15, Gerry named numerous objections “which determined him to withhold his name from the Constitution.”  The details of their respective objections differed from one another, but all three dwelt on the concentration of power, on particular powers they believed would be abused, and on the improper distribution of powers that were being granted to the three branches of the new government.  All three non-signers dangled the promise that they could be brought around, if only the Convention would agree to allow the states to submit amendments, and the final determination could be made by a second general convention. This offer had no chance of success, since the other delegates were convinced that a second general convention—probably made up of delegates who would arrive saddled with stringent and contradictory demands from each state—was a sure recipe for failure. 

Madison’s Discontent

Yet the three members who openly refused to sign the Constitution were by no means the only disappointed members at the close of the business. On September 6, Madison admitted to Jefferson that, in his opinion, “the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments.” Madison was still deeply concerned by the equal power of the states in the Senate, and even more the lack of a federal veto over state laws. In spite of his pessimism about the plan, however, Madison believed it was of paramount importance that it be adopted: “If the present moment be lost it is hard to say what may be our fate.”  Similarly, Hamilton expressed his own doubts about the Constitution on the last day of the Convention: “No man’s ideas were more remote from the plan than his were known to be.” Nonetheless, he urged every delegate to support the Constitution, because he saw their choices as lying “between anarchy and Convulsion on one side, and the chance of good to be expected from the plan on the other.” Both Madison and Hamilton, swallowing their personal misgivings, would be champions in the fight for ratification. 

On September 15, in the turbulent wake of the threatening voices of the Constitution’s detractors, the Convention made its most momentous choice that summer. The day had been an especially long one, stretching into the evening. A plethora of trivial motions had been proposed, most of which were rejected. The three non-signers had made a last-ditch effort to forestall what they considered would be a disaster, but their call for a second general convention was met with a resounding negative. Finally, Madison reported simply: “On the question to agree to the Constitution, as amended. All the States ay.” This vote took place on a Saturday evening, and the text of the Constitution was handed over to Jacob Shallus, the assistant clerk for the Pennsylvania General Assembly, to be engrossed onto vellum parchment (a soft but durable animal hide) before their final meeting on Monday, September 17.