Archive for the ‘Constitutional Convention’ Category

Real World Graduation: Question 4

RealWorldGraduation_Question_4   <– PDF

Article I, Section 2 of the U. S. Constitution originally contained the following provision:

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this union, according to their respective Numbers, which shall be determined by adding to the whole number of free persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other persons.”

In this passage, “representatives” refers to the number of seats in House of Representatives in Congress, “Numbers” refers to population, “several States” refers to any State that ratifies the Constitution, “those bound to service” refers to indentured servants (those who had committed to a term of voluntary servitude in compensation for repayment of the voyage to America fronted by others), “Indians not taxed” refers to Indians on reservations, “other persons” refers to slaves, and “free persons” refers to anyone not in the “other person” group, i.e. not slaves.

This passage can therefore be clarified as follows: “Representatives and direct Taxes shall be apportioned among the States according to their respective population, which shall be determined as the sum of the number of a) all free persons, b) indentured servants, and c) three-fifths of slaves; specifically excluding Indians on reservations.” In other words, representation in Congress was apportioned to the full population of all people in the state not on reservations, except for slaves, whose apportionment was at a fraction of only 60%.  This is known as the “three-fifths” rule.  This three-fifths provision was superseded by the 14th Amendment, which was ratified 9 Jul 1868.

Why did the Founding Fathers insert the three-fifths clause regarding slaves?

  1. a) Most of the Founding Fathers were slave owners who had contempt for black people, and reduced the value of black people to 60% of a white person because it was a long-held tradition.
  2. b) Most of the Founding Fathers were slave owners who had contempt for black people, and reduced the value of a black person to 60% of a white person in an attempt to deprive the slaves of their fair share of welfare payments.
  3. c) Even the Founding Fathers who did not own slaves were racist, and reduced the apportionment of slaves to 60% of a white person to suppress the political influence of the black slaves in the Southern states.
  4. d) The members of the Democratic Party insisted on this provision before they would allow a ratification vote in the Southern states.
  5. e) Each of the Founding Fathers had different motives, but these motives were generally a combination of a), b), and c).

(The answer shown on p. 2 of the PDF.)

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The Defects of the Articles of Confederation, Part 13

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It was only a week after the Declaration of Independence that a committee in the Continental Congress reported out an initial plan for organizing a confederation of the states to be united in the effort against Great Britain.  Although reported out of this committee on 12 Jul 1776, it could have no practical effect until the members of Congress agreed to all of its terms and proposed it to the states.  This was a sensible approach, given that the Articles represented a purely federal system, that is, a compact between states in their sovereign capacity.  Congress debated these for nearly 18 months; on 15 Nov 1777, having reached agreement on the terms thereof, a letter dated 17 Nov 1777 was sent to every state, asking those states to ratify the Articles.  The legislatures of eight states passed legislation in the next 6 months by which their delegates to Congress were authorized to approve the Articles.  The delegates from those states (New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina) formally ratified the Articles on 9 Jul 1778.  The provision is contained in Article XIII:

Article XIII.  Every State shall abide by the determinations of theUnited States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

            And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union, Know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained.  And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.  Done at Philadelphia, in the State of Pennsylvania, the ninth day of July, in the year of our Lord 1778, and in the third year of the Independence of America.

But the Articles did not contain a provision by which it would go into effect for those states that ratified it; the intent was that all 13 states were to be united in the war effort.  Therefore, the Articles did not formally go into effect until 2 Mar 1781, the day after Maryland’s legislature ratified the Articles.  This unanimous requirement for both ratification and amendment proved to be a serious defect, as already cited in parts 9 and 12 of this series.

The framers of the Constitution were only too familiar with this difficulty, and made provision in the new Constitution by which it would go into effect if a certain number (two-thirds) of the then-existing states were to agree to it:

 [Article 7]:  The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.

This may seem contrary to the Preamble in the Constitution, which states:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

How can it be said that the people established it, if in fact it required ratification by the states?  The answer lies in the fact that each state that ratified it did so at a ratifying convention called for that purpose in each state, and each delegate sent to it was tasked with representing the people of the state.  The U. S.Constitution is the founding document of a compound democratic republic established by republican means, that is, when the people are represented by those they trust, and accept the results of a  vote of the specified majority.  In this way, although the representatives cast their votes directly, those votes matter only because the full weight of the people’s confidence is behind them.

James Madison, writing in The Federalist #40, discussed the objections of some who were opposed to the Constitution on the grounds that agreement of all thirteen states should be required before it should go into effect. Madison simply noted that the critics had avoided the fact that unanimity on ratification would be a form of minority rule:

It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention.  The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people — an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country.  As this objection, therefore, has been in a manner waived by those who have criticized the powers of the convention, I dismiss it without further observation.

The “example of inflexible opposition” referred to here was the refusal by the state of New Yorkto allow Congress (under the Articles) to impose an import duty in order to obtain a direct revenue source.

Madison addressed the method of ratification as called out in Article 7 directly in The Federalist No. 43:

This article speaks for itself.  The express authority of the people alone could give due validity to the Constitution.  To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member.  It would have marked a want of foresight in the convention which our own experience would have rendered inexcusable.

The provision in the Constitution was an improvement over the Articles in two ways: a) nine states could activate it without being held hostage to a minority of states; and b) it was ratified by conventions that represented the people, not just the state governments.


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The Defects of the Articles of Confederation, Part 12

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Change is the one unchanging constant of human history.  By way of application, it must be admitted that any rules for governance among people must contain a provision by which those rules may be altered in an orderly fashion in order to accommodate changing conditions.  The Articles of Confederation contained such a provision as follows:

Article XIII.  Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

The concurrence of every state legislature was required to make any change in the Articles.  Part 9 of this series discussed the main problem with the revenue provisions of the Articles, namely that Congress was entirely dependent on the states through the requisition system.  But the Articles could not be amended, because one state (New York) refused to permit Congress a power to establish an independent revenue source to meet the needs at the national level.  The conflict over Congress’ revenue started on 3 Feb 1781, when Congress, realizing that the requisition system was not working, recommended that the Articles be amended to allow Congress to impose an import duty.  With such a power, Congress could raise revenue necessary to perform its minimum duties, such as paying the army. Rhode Island was the first to reject the concept on 1 Nov 1782, arguing among other things, that the revenue collectors would not be answerable to Rhode Island. Virginia was initially in favor of the import duty, but revoked its agreement on 11 Jun 1783.  But in that same month, Delaware and New Jersey agreed to it; South Carolina followed suit on 13 Aug 1783 but with difficult caveats; Massachusetts concurred on 16 Oct 1783; Virginia reversing itself once again in favor on 29 Dec 1783; North Carolina agreed on 2 Jun 1784; and New Hampshire agreed on 23 Jun 1785.  All the other states except New York did likewise by May 1786.

But the government of the state of New York, interested only in its own revenues, refused to allow Congress to impose any import duties.  On 16 Aug 1786, Governor Clinton of New York notified Congress that he would not call the state legislature into session to consider the proposal; although Congress was desperate for money, he did not consider the situation important enough.  On 15 Feb 1787, New York gave its final refusal to consider the matter.  This proved fatal to the Confederation, as Congress realized it now had no hope of a stable revenue stream.  It caused Congress endorse the idea of a convention of the states to modify the Articles, which became the convention that wrote the Constitution.

The Constitution permits amendments in a manner superior to the Articles of Confederation:

[Article V]  The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Under this provision, amendments to the Constitution may be initiated in two ways: a) if two-thirds of both Houses of Congress pass an amendment; or b) if two-thirds of the states call for a convention for the purpose of proposing amendments.  In each case, concurrence of three-fourths of the states, either by their legislatures or by ratifying conventions, is required before such proposed amendments take effect.

James Madison defended this provision in The Federalist #43:

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.

Alexander Hamilton answered critics of the provision, and gave his opinion on the nature of amendments were they to occur, in The Federalist #85:

In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.  For my own part I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated.  I also think there is little weight in it on another account.  The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents.  But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile.  It is this that the national rulers, whenever nine States concur, will have no option upon the subject.  By the fifth article of the plan, the Congress will be obliged “on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.”  The words of this article are peremptory. The Congress “shall call a convention.”  Nothing in this particular is left to the discretion of that body.  And of consequence, all the declamation about the disinclination to a change vanishes in air.  Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people.  We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.

Hamilton was almost right when he wrote that subsequent amendments would mostly change the organization of the government, not its powers.  In fact, the first ten Amendments confirmed the existing rights of the people and the states relative to the federal government, thus expressly limiting the federal government’s power if there was any room for doubt among rational people.  There are only two cases where the federal government expanded its powers by amending the Constitution. The first was the patently moronic Prohibition (Amendment 18, subsequently repealed by Amendment 21), which led to the rise to a permanent criminal class with the means and willingness to corrupt the government.  Although alcohol prohibition was repealed, it was replaced with other equally detrimental prohibitions that have kept the criminal elite employed for decades.  The second case of an expansion of power is Amendment 16, which gave Congress a power to tax incomes.

In general, this method of amendment has the virtue of making amendments fairly difficult, thus enhancing the stability of the Constitution.  At the same time it permits necessary amendments, but only if a great majority of the people, acting through their state legislators or conventions, agree to it.  It has proven over time to be a most beneficial system, since very few of the numerous and ridiculous proposed amendments ever come to the states for consideration — they die in Congress as they deserve.

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The Defects of the Articles of Confederation, Part 11

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Human civilization is probably about 10000 years old.  It is fascinating to consider that chattel slavery has existed for 98.5% of that entire period, having ended only about 150 years ago.  While it is nothing new in the history of mankind, it is more revolting to the modern mind.  In America we continue to be preoccupied with it since American slavery was uniquely racial in its implementation.  That, combined with the fact that there are Americans still living who knew, as children, people who had been slaves, causes slavery to remain fresh in our debates.  But those among us who impute universal racism to white people would do well to remember that far more white people than black have been slaves throughout history. The enslavement of blacks began in Africa, just as the enslavement of whites originated in Greece and Rome.  Does racism exist in America?  Of course; it always has and it always will so long as people of one racial group desire to feel superior to some other.  There are and always will be a few who join the Ku Klux Klan or sympathize with them and their equivalents; there are likewise on the other side always a few who embrace Black Liberation theology and its various mutations.  I digress — our subject is the issue of slavery at the forming of the United States.

Slavery was practiced throughout the 13 colonies from the mid-1600’s onward, especially in the south.  It became apparent soon after the colonies were established that black people were better suited to the hard labor required in an agricultural economy in the sub-tropical conditions of the south.  Or at least the white people discovered that claim as a convenient excuse. In any case, many of that era believed that slavery was an efficient economic system.  Secondly, slavery was important to the British crown as a source of revenue, and was not only encouraged in the colonies, it was sometimes vigorously promoted since there was a great deal of money to be made buying/capturing slaves and selling them in the colonies once Britain obtained a lock on the slave trade in the early 1700’s.

The institution of slavery was not uniformly embraced in all the colonies.  In the north, the religious ethic rejected slavery on moral grounds, and it did not take hold there as it did in the southern colonies, where the (false) economic argument was firmly planted.  There were many attempts prior to the Revolutionary War to limit slavery in the colonies.  A few examples are as follows.

In Virginia, the state Assembly imposed a series of import duties from 1732 on the importation of slaves that nearly amounted to a prohibition (up to 40% of the slaves’ value). In 1772 the Virginia Assembly wrote to King George III, asking him, unsuccessfully, to abolish the slave trade [1]:

 “We implore your Majesty’s paternal assistance in averting a calamity of a most alarming nature.  The importation of slaves into the colonies from the coast of Africa hath long been considered a as a trade of great inhumanity, and under its present encouragement we have too much reason to fear will endanger the very existence of your Majesty’s American dominions.  We are sensible that some of your Majesty’s subjects may reap emoluments from this sort of traffic, but when we consider that it greatly retards the settlement of the colonies with more useful inhabitants and may in time have the most destructive influence, we presume to hope that the interest of the few will be disregarded when placed in competition with the security and happiness of such numbers of your Majesty’s dutiful and loyal subjects.  We therefore beseech your Majesty to remove all those restraints on your majesty’s governors in this colony which inhibit their assenting to such laws as might check so pernicious a consequence.”

The Rhode Island legislature passed a law in 1774 whereby all slaves brought into state by citizens of other states were to be free, except those passing through with their master; also, Rhode Island citizens bringing in slaves had to remove or free them in one year [2].  In Connecticut, the Assembly passed a law in 1774 stating [3] “No Indian, mulatto, or negro slave shall at any time hereafter be brought or imported into this state, by sea or land, from any place or places whatsoever, to be disposed of, left, or sold within the State.” New Jersey had attempted in 1744 and 1761 to essentially prohibit importation by imposing large import duty [4], but it was rejected by the Provincial Council as injurious to crown revenue.  In Pennsylvania, the influence of the Quakers led to the voluntary freeing of many slaves from 1725 onward [5]. Massachusetts attempted in 1774 to prohibit the importation of slaves outright [6], but this motion was rejected by Gov. Hutchinson as it would reduce revenue to the crown.

The Articles of Confederation was silent on the entire issue of slavery; each state enacted legislation as it saw fit. In 1775, slavery existed in all 13 states but there was a great deal of activity in the states toward reducing slavery from the start of the Revolution through the period of the Articles.  In 1776 Delaware prohibited further importation through a provision in its new Constitution, which read: “No person hereafter imported into this state from Africa ought to be held in slavery under any pretense whatever, and no Negro, Indian or mulatto slave ought to be brought into this state for sale from any part of the world.”  Unfortunately, free blacks were occasionally kidnapped & sold.  In 1776, Rhode Island passed legislation that made all children of slaves born in 1776 and after free; and promoted the gradual liberation of existing slaves by regulation [7]. In 1778,Virginia prohibited further importation of slaves, although probably more out of fear of a large population of slaves starting an uprising than out of widespread disapprobation of the institution itself [8]. Pennsylvania passed a law in 1780 that prohibited further importation, and made all persons born after 1 Mar 1780 servants only until age 28, after which they were then free [9].  It was not abolished outright until 1847.

Massachusetts adopted a new Constitution in 1780, the first article of which read: “All men are born free and equal, and have natural, essential, and unalienable rights; among which may be reckoned the right of enjoying, and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”  It was not intended by these words to abolish slavery, but a series of court rulings on the Constitution in 1781 and afterward serve to gradually reduce slavery; the people considered it abolished for practical purposes [10].  In 1788, importation of slaves was prohibited directly [11].

Maryland prohibited further importation in 1783, (but slavery was not abolished until 1864). New Hampshire passed a law in 1783 that was similar to the 1780 Pennsylvanialaw; in 1784,Connecticut did the same [12]. New York followed suit in 1785, except the children of slaves gained full voting rights. Starting in 1782, New Jersey freed all the slaves that had been owned by Tories [13].  In 1786 the legislature passed provisions for voluntary gradual freeing of slaves of a certain age [14]; in that same year prohibited further importation; and in 1788 also prohibited exportation [15].  Gradual mandatory emancipation did not begin until 1804, and slavery was not abolished entirely until 1846.

In 1786 the state of North Carolina imposed a 5 pound sterling duty on importation to discourage the trade.  Only in Georgia and South Carolina was the slave trade entirely unrestricted.

The weakness of the Articles of Confederation in this regard was that there was no limitation on the importation of slaves as a general rule.  It was gradually being phased out in the north, while importation continued unabated in the south.  As the debates at the Constitutional Convention got underway, it was soon apparent that many in the north would have preferred to abolish slavery entirely, but the Georgia and South Carolina delegations made it clear that they would never join the union if there was any attempt to remove slavery as an institution – it was, they believed, too important for the function of their economy [16]. This condition determined the debate, as Georgia and South Carolina were essential for the preservation of the union.  It was necessary to keep those two states in the union, since they would serve to deter a serious military threat from Spain in the south.  Secondly, if they did not join the union, it is likely they would have attempted to rejoin Great Britain in order to gain an ally in any controversy with Spain over navigation rights on theMississippi.  These two southern states were however, willing to accept the prohibition on the importation of slaves after 1808.  The provision in the U. S. Constitution reads:

[Article 1] Section 9.  The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The provision did not affect existing slaves, but it was an improvement over the Articles since it universally limited importation after 1808.  In effect, it imposed on all the states, even those where slavery was most entrenched, the same trend that had occurred in the northern states throughout the previous decade.

[1]        James Curtis Ballagh, A History of Slavery in Virginia, Baltimore: Johns Hopkins University Press, 1902, p. 22

[2]        William D. Johnston, Slavery in Rhode Island 1755 – 1776, Providence: Rhode Island Historical Society, 1894, pp. 130, 131

[3         Bernard C. Steiner, “History of Slavery in Connecticut”, Johns Hopkins University Studies in Historical and Political Science, Eleventh Series, Baltimore: The Johns Hopkins Press, September-October 1893, p. 16

[4]        Henry Scofield Cooley, “A Study of Slavery inNew Jersey”, Johns Hopkins University Studies in Historical and Political Science, Fourteenth Series, Baltimore: The Johns Hopkins Press, September-October 1896, p. 15,16

[5]        Edward Raymond Turner, The Negro in Pennsylvania: Slavery – Servitude – Freedom 1639 – 1861, Washington DC: The American Historical Association, 1911, pp. 56 – 61

[6]        George H. Moore, Notes on the History of Slavery in Massachusetts, New York: D. Appleton & Co. 1866, p. 142

[7]        op. cit., Johnston, p. 133

[8]        op. cit., Ballagh, p. 23

[9]        op. cit., Turner, pp. 77 – 79

[10]       op. cit., Moore, pp. 202 – 217

[11]       op. cit., Moore, pp. 141, 142

[12]       op. cit., Steiner, p. 30

[13]       op. cit., Cooley, p. 46

[14]       op. cit., Cooley, p. 47

[15]       op. cit., Cooley, p. 18, 19

[16]       See the text of the debates in the Constitutional Convention on 8 and 22 Aug 1787.  The primary source is Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787; With a Diary of the Debates of the Congress of the Confederation As Reported by James Madison, Philadelphia: J. B. Lippincott & Co., 1881, Vol. 5, pp . 391-394 and 457-461; see also E. D. Duvall, “Regarding the Three-Fifths Rule”, 20 Jun 2011, pp. 51-59

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