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Historical Background

BY August 31 the delegates had considered practically all the recommendations of the committee of detail word by word. They were fatigued, restless, and wanted to go home, but a number of loose ends remained. The most important of these "postponed matters" were the method of election of the President, the locus of appointive powers and treatymaking, the organ of Government that would try impeachments, and the method of originating money bills.

Because the procedure seemed to have worked so well before, the Convention appointed a committee, on postponed matters. Representing each of the 11 States officially in attendance, it was chaired by Brearly of New Jersey and included Sherman of Connecticut, Dickinson of Delaware, Baldwin of Georgia, Carroll of Maryland, King of Massachusetts, Gilman of New Hampshire, Williamson of North Carolina, Gouverneur Morris of Pennsylvania, Butler of South Carolina, and Madison of Virginia.

The committee, which reported on several days in early September, modified the draft constitution extensively, largely to the satisfaction of the Convention. Details of the qualifications of the President were changed somewhat. His term was reduced from 7 years to 4, and no limit was set on reeligibility. The minimum residence requirement was reduced from 21 to 14 years, but the President was required to be either native born or a U.S. citizen at the time of the adoption of the Constitution. His powers were augmented considerably. He gained authority to make treaties, which would need to be approved by two-thirds of the Senators; and to appoint ambassadors, judges, and other officials, including members of the Supreme Court. Appointees would be subject to the endorsement of a Senate majority.

The committee also proposed that power to try impeachments of high officials be transferred from the Supreme Court to the Senate and that conviction require a two-thirds majority.

The most difficult "postponed matter" was election of the President. From the beginning of the Convention there had been little dispute about his importance, but agreement could never be reached on how he would be elected. So long as a consensus prevailed that he be chosen by the Legislature, most delegates felt he should serve a rather long term and be ineligible for reelection to prevent undue legislative influence on him. Madison, Wilson, and some other leaders favored, at least in theory, direct or indirect election by the people. But a direct popular vote seemed impractical. There was no uniform national franchise, and the Convention had not even attempted to create one. Many of the delegates and other national leaders shared a conviction that the people at large were incapable of making a wise selection. In addition, no system existed to limit candidates to a reasonable number. Finally, some accommodation to the Federal character of the Union was imperative.

The committee on postponed matters offered an ingenious and complex method of election that met widespread approval. Electors would be selected in each State, according to a method chosen by the legislature. The number of electors would equal the State's total of Senators and Representatives. The electors would ballot for two persons, at least one of whom could not be a resident of their State. The votes would be dispatched to the Senate. The person holding a majority of the votes would become President. But what if no candidate received a majority? The Senate would then choose the President from the five candidates who had won the most votes.

The person holding the second highest number of electoral votes would become Vice President; in case of a tie, the Senate would make a choice. This was a new office that many delegates only grudgingly accepted. Its occupant would preside over the Senate; cast the deciding vote there in case of ties; and occupy the presidency in the event the incumbent died, resigned, or was otherwise unable to fill the office.

The committee on postponed matters carefully avoided an electoral scheme that would grant absolute power to the people at large to elect the President. Few delegates would allow that, and those who supported the idea knew that most of the States would not. On the other hand, the committee left the way open to the evolution of a form of popular election by allowing the States to determine the method of choosing electors. The small and large States were both pleased with the formula of adding each State's Representatives and Senators to arrive at its electoral vote.

Objections led to some modification of the committee's proposals. Many of the founders feared for the future. They were reasonably certain Washington would be the first President, but they foresaw that it might be difficult to agree upon his successor and the Senate might thus need to make the choice. This would allow it to exercise undue, perhaps even oligarchic, influence. The committee, trying to anticipate this fear, had already stripped the Senate of much of its treatymaking and appointive powers by shifting basic authority in these areas to the President.

Now, after a vigorous debate, the Senate lost its prerogative of choosing the President in cases where no candidate had a majority. The Convention was in a quandary again because the small States bitterly opposed election by the House. At Sherman's suggestion, a fresh crisis was avoided by obtaining agreement that the House of Representatives would indeed choose the President in the event none of the five leading candidates had won a majority. Each State, however, would have only one vote regardless of its number of Representatives.

The trying issue of the authority and election of the President was at last resolved. The committee on postponed matters had given him larger powers and reduced his dependence on the Legislature. Although rumors outside the statehouse reported the Convention was considering the establishment of a monarchy, no such thing was in the minds of the majority. Instead, it was determined to balance the three branches of Government so that no one would dominate the others. A strong, independent Executive was sought, not a too-powerful Senate. The intent was to achieve a balance between the Executive and Legislature.

One last compromise remained. The matter of originating money bills had been debated and tentatively resolved several times. The large States, which would enjoy stronger representation in the lower House, were determined that money bills be initiated there without amendment by the upper. The small States hoped that the Senate, where they would be more powerful, would play a role. It was finally agreed that such bills would originate in the House of Representatives, but would be subject to senatorial amendment.

BY the close of business on September 8, review of the work of the committee on postponed matters had been essentially finished. It remained to put the emerging constitution into its final form, approve, and sign it. To this end, another committee, of style, or revision, to put the finishing touches on the work of the Convention, was selected. It consisted of five talented and distinguished members: Chairman William Samuel Johnson, Gouverneur Morris, Madison, King, and Hamilton. These men worked from September 8 to 12. Little is known about their procedures or day-to-day workings. The preponderance of evidence, however, suggests that Gouverneur Morris was the actual "penman," or drafter, of the Constitution.

Meantime, the rest of the delegates had made a few last-minute adjustments in their handiwork. Amendments could be initiated by two-thirds of the Congress or by a constitutional convention if two-thirds of the State legislatures so requested. Proposed amendments would have to be approved by three-fourths of the States, acting through their legislatures or conventions. Some delegates were concerned that the amending process might undo the work of the Convention, but the only specific limitation put on the process at this time was a provision to prevent interference with the slavery compromise so painfully agreed to earlier. Sherman later won a proviso to protect equality of State suffrage in the Senate. Randolph sought in vain to authorize a second convention before the new Government went into effect to consider amendments the States might offer during the ratification process.

The Convention adjourned on September 10 to await the report of the committee of style, and met again the next day, but the report was not ready so another adjournment occurred. The following day, the delegates reassembled, and the committee submitted its draft, which was read and sent to the printer. All that remained was to compare the work of the committee with the amended draft given to it and make final corrections.

James Madison's annotated copy of the first page of the committee of style printing of the Constitution. The second printed version, t was received from Dunlap & Claypoole on September 13. At least 13 annotated originals have survived. (Library of Congress.)

During the printing process, the rest of the 12th was devoted to discussion of final modifications. By the close vote of six States to four, with one divided, it was decided to reduce the congressional margin needed to override the President's veto from three-fourths to two-thirds.

The absence of a bill of rights came up once again. Mason, who had authored the Virginia Declaration of Rights, pleaded that such a bill should preface the completed Constitution. Gerry of Massachusetts moved that a committee be appointed to prepare one. But Sherman of Connecticut, objecting, contended that the Constitution did not repeal the State bills of rights, which he felt were sufficient guarantees. Mason responded that the laws of the United States under the Constitution were to be supreme and might therefore negate State enactments. Despite this argument, the delegates, as a whole, seemed to fear that, though only a few hours might be required to write such a bill, weeks of debate would be needed to obtain its approval. So, by a vote of 10 States to none with Massachusetts absent, a bill of rights was rejected.

This proved to be the most serious mistake made during the Convention. When debates over the ratification began, objections were raised everywhere to the absence of a bill of rights, and several States considered making their ratification contingent upon the speedy addition of one. They contented themselves with suggesting amendments, however, and the First Congress moved rapidly to remedy this defect.

From September 13 to 15 the delegates carefully reviewed the finished document and made some changes, many editorial in nature. Some 60 copies, in four pages, had been returned by the printer; it was the second printed version of the Constitution. Ably performing its assignment, the committee of style had reduced 23 articles to seven and smoothed wording here and there, but had made only two substantive modifications.

Fatefully, but unintentionally, the opening phrase of the preamble had been revamped so that it spurred the cause of nationalism. The committee of detail's version, approved by the Convention earlier, had read "We the People of the States . . ." and then had listed each of the 13 States. The committee of style had altered it to read as follows: "We the People of the United States . . . ." The phrase " . . . in order to form a more perfect Union" was also added. The States were not specified.

Nationalists Elbridge Gerry (left) and George Mason (right) had almost perfect attendance records at the Convention, played influential roles in the proceedings, objected to the lack of a bill of rights in the Constitution, and refused to sign. (Gerry, oil on panel (early 19th century) by an unknown artist, after John Vanderlyn, Fogg Art Museum, Harvard University; Mason, oil (1811) by Dominic W. Boudet, after a lost portrait by John Hesselius, Virginia Museum of Fine Arts (on loan to Gunston Hall Plantation).)

The new phrase had the effect of making it seem to appear that sovereignty was placed in the people of the United States rather than in the States. But this was not the actual reason for the change. The earlier version had been predicated on the assumption that all the States of the Confederation would need to approve the new Government before it could be established and they were therefore named in the preamble. But, after the Convention's momentous decision to rely on ratification by nine States, it was not known if all the States would ratify. Furthermore, the delegates could hardly speak for the two States not present.

The second alteration made by the committee of style was at the urging of King of Massachusetts. Seeking to guard property rights, it forbade the States from passing laws that might impair the obligation of contracts.

Although the committee made only these two basic changes, the Convention made several dozen, most of them minor clarifications or changes of wording. Aside from those, the delegates shifted the power to appoint a national Treasurer from Congress to the President. They also prohibited the Chief Executive from receiving any emolument except his salary from the national Government. As with the earlier provision specifying that the Treasury would pay Congressmen, this one was designed to lessen any dependence national officials might have on the States of their origin. In addition, the amending process was revised to provide that future constitutional conventions might be held should two-thirds of the State legislatures so request.

Other modifications were rejected during the last 3 days. Among these were Franklin's proposal that the Government should have the express power to build canals; Madison and Charles Pinckney's suggestion that it be empowered to establish a national university; an effort to reinsert a two-thirds vote requirement for the passage of navigation laws; and Madison's recommendation that the Government have the power to incorporate businesses for the purpose of supporting internal improvements. An attempt to insert the principle of the freedom of the press was set aside as unnecessary. Randolph repeated his call for a second constitutional convention to consider amendments that might be offered by the States, but he met deaf ears.

Secretary Jackson's official record of the last day's voting. (National Archives.)

Late in the afternoon of Saturday, September 15, the States voted unanimously to accept the Constitution, directed the printer to make the appropriate revisions in the type that had been set on September 13, and ordered the engrossing of the finished product.

Late Saturday evening or Sunday it was undoubtedly Secretary Jackson who obtained the engrossing services of Jacob Shallus, assistant clerk of the Pennsylvania General Assembly, which had been meeting since September 4 in the room above that used by the Convention. Shallus was apparently provided with a corrected copy of the report of the committee of style and a revised text of the last two articles (dealing with ratification) of the report of the committee of detail. These two articles appeared as the fifth, or last, page ("resolution of transmittal" or the "ratification notice") of the Constitution. Shallus worked hurriedly over the remaining part of the weekend, and apparently received $30 for his effort. Possibly some unidentified person prepared the decorative lettering "We the People" and the numbered "Article" heads.

"The Adoption of the Constitution" by J. B. Stearns, one of several artistic versions of the historic event. (Oil (ca. 1856) by Junius Brutus Stearns. Virginia Museum of Fine Arts.)

ON Monday, September 17, the Convention reconvened for the signing. That morning, 41 of the 55 delegates who had participated were present. After someone, probably Secretary Jackson, read the document aloud, Franklin obtained permission to speak. Because of his infirmity, however, Wilson read his speech for him. It sought to conciliate the delegates and unite them all in signing the instrument. Franklin admitted he did not approve of several parts of it, but avered that in the fullness of time he might come to favor them. In any case, no one would be completely satisfied and the document was the best that could be achieved. Furthermore, the public good required its acceptance.

At the end of his speech, Franklin offered a motion, conceived by Gouvernor Morris, that was intended to cajole some dissenting members to sign—on behalf of their States, not as individuals. For this purpose, the resolution suggested the following wording for the closing block of the Constitution: "Done in Convention by the unanimous consent of the States present the seventeenth day of September ..." Before the vote could be taken, Gorham moved that the stipulation providing for representation in the House not to exceed one Representative for each 40,000 inhabitants be changed to one for each 30,000. King and Carroll offered seconds. Washington rose to give his only speech of the Convention, in favor of Gorham's proposal, which passed unanimously.

Attention was again turned to Franklin's resolution. But, prior to the vote, one final bit of debate occurred. Randolph and Gerry reiterated their objections to the Constitution and explained they would refuse to sign it, as they and Mason had done in the previous session. Blount said he, too, opposed much of the document, but would underwrite it to demonstrate the unanimity of the States. After various other delegates gave their opinion on the subject, Franklin's motion passed by a vote of 10 States to none, with South Carolina divided. King moved to destroy the Convention's papers or to deposit them with its president; the Convention voted to turn them over to Washington for safekeeping until Congress ordered their disposition.

About this time, Shallus, who likely was waiting outside the room, engrossed the closing block, probably before the signing though it is possible he did so afterward. To the left of the block, he also inscribed an errata statement, which included reference to the change from 40,000 to 30,000 inhabitants and three minor changes or interlineations. One of the latter (an interlineated "the") referred to the wrong lines; and another interlineated "the," between lines 51 and 52 of the second page, was not incorporated in the errata statement.

Sometime during the afternoon the signing began. All present except Randolph, Mason, and Gerry, or a total of 38 men, affixed their signatures. Accounting for the 39th name, Read signed at the behest of fellow Delawarean Dickinson, who had left the Convention early because of illness. Washington, as the president of the meeting and delegate from Virginia, penned his name first, at the bottom of the fourth page of text. He was followed by the other delegates in the standard congressional voting order, by State generally from north to south: New Hampshire, Massachusetts, Connecticut, Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. The names were arranged in two columns, the right-hand one being filled out first.

George Washington's diary, September 13-18, 1787, in which he records his reactions during the final days of the Convention. (Library of Congress.)

The signature of Hamilton, who also wrote the State names to the left of the block of each delegation as it signed, was misleading for it tended to give the impression that 12 instead of 11 States had approved the document. He was the only delegate from New York present, in an unofficial capacity, and he did not represent a quorum of his delegation as Convention procedures required.

Near the end of the signing, Franklin observed to nearby colleagues that he had noticed a sun and its rays were represented on the back of the president's chair. Throughout the vicissitudes of the Convention he said he had been unable to tell whether it was a rising or setting sun. But now, with the signing of the Constitution, he declared "I have the happiness to know that it is a rising and not a setting Sun."

The signing completed, about 4 p.m. the Convention adjourned sine die, or indefinitely. The delegates walked over to the City Tavern for a final dinner and farewells. The question of public response to their work now became the leading issue in the Nation.