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The Persons Among People in 1787

Why the U.S. Constitution contained within itself a promise that became a lie

In the spring of 1787, a group of men met in Philadelphia, Pennsylvania to revise the Articles of Confederation and ended up drafting the United States Constitution. That convention dissolved itself about four months later, on September 17, when work, some said, was finished, and the paper signed at that juncture proceeded out of Philadelphia and into the hands of the people for their scrutiny. The anniversary of that day in 2018 recently arrived and left again, as things do, and while students of the past remember September 17th every year, the occasion exacts a special obligation of attention today.

The ascendancy of white nationalism in the wake of the election of the current President of the United States, the distribution of safety on the basis of color, and the fearful obsession with foreshortening the possibilities of belonging, together have squandered collective hopes for an America that becomes, over time, more perfect, more just, and more good. For a very specific reason, though, these phenomena, so striking today, are not anomalies in the course of human events. On the contrary, they hold up a mirror that reflects back, with great clarity, a defect in the plan of government designed 231 years ago, which abides still. As historians have realized, we tell stories about the past in order to make political arguments in the present. These accounts, too, help us understand ourselves. It is in this spirit that the wrong of the U.S. Constitution should be identified anew.

In one of the most powerful indictments of the U.S. Constitution committed to record, abolitionist William Lloyd Garrison in 1854 described it as “a covenant with death, and an agreement with hell,” and decimated a copy in flames. Later, at the bicentennial of the Constitution’s completion in 1987, U.S. Supreme Court Justice Thurgood Marshall, more subtly but no less movingly, confessed that he did not “find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound.” The government devised in 1787 was “defective from the start,” he observed, requiring not only amendment but civil war “to attain the… respect for the individual freedoms and human rights, that we hold as fundamental today.” [1]

This essay is not interested in discussing constitutional compromise, the bargains that were made to revise the plan of government in the summer of 1787 and successfully commit its rules to record. It is interested, rather, in rethinking where the wrong of the engrossed U.S. Constitution, ratified by the requisite ninth state convention on June 21, 1788, precisely lay, because it remains a historical question sure. The wrong lay not (or not only) in the purposeful preservation of the condition of slavery. It lay in making war — battles of blood and milk and greatest possible distress — an elemental component of government in the United States.

One route forward from the self-evident Truth inscribed in the Declaration of Independence that “all Men are created equal” and “endowed by their Creator with certain unalienable Rights” would have been an egalitarian leveling up such that certain rights, whatever they were, among them, at least, “Life, Liberty, and the Pursuit of Happiness,” secured by government, came, over the course of time, to reach all men, or perhaps even all men and women, as guarantees. That did not come to pass. Nor did it come to pass that these certain rights, whatever they were, came to reach all men whose number contributed toward the authority by which they were ruled. In one of the curiosities of the paper drawn up by the delegates in Philadelphia, the Constitution of the United States awarded political representation in the first branch of the national legislature to “free Persons” for slaves deemed “other Persons.” To say the same differently, delegates drew up a paper according to which the first branch of the national legislature would represent “the people” and not “the States,” but admitted of political representation for “free Persons” as slave owners. This has come to be known, of course, as the three-fifths compromise, captured in the third clause of the second section of Article I. Delegates drew up a paper that counted the heads of slaves for the purpose of deciding how many Representatives from each state were to serve in the Congress, while it denied the so-counted the opportunity to live in their own power and, in other corners, smoothed a road for their importation into the next century and secured to their owners a property in them against escape. In short, they drew up a paper that counted inhabitants whom the paper was not written for.

The number of representatives who ended up in the House of Representatives, however, did not exhaust the significance of apportionment of this peculiar kind. On the contrary, apportionment of this peculiar kind raised a question about the very nature of union among free and independent states, for this mode of counting, and of assigning, laid the “ground-work,” as James Madison explained to Thomas Jefferson a month after the constitution went to the states for ratification, for the whole scheme of national government.

In Federalist No. 10, published during the great ratification debate on November 22, 1787, Madison, a delegate to Philadelphia from Virginia whose ideas did much to guide the convention’s proceedings, suggested that political representation made the republic what it was. The delegation of power to elected rulers from “the people” was the difference, descriptively, he wrote, between a pure democracy, understood as the administration of government by “citizens… in person,” and a republic, understood as the administration of government by “citizens elected by the rest.” By “republic,” he explained, “I mean a government in which the scheme of representation takes place.” Madison wrote elsewhere that all political experiments in America rested on mankind’s capacity for self-government, but giving power to elected rulers who, correspondingly, depended on those who elected them for the power they enjoyed was self-government in 1787. Ruling in America was crafted to suffer an indebtedness to the ruled, and the aim, perhaps, was for rulers to reach office not by accident or intrigue, but by choice.

Madison conceptualized the U.S. Constitution as an alternative to civil war wrought by the monster of imperium in imperio (an empire within an empire) for transgressions of national rules by individual states. The use of force against a state would look more like a declaration of war than an infliction of punishment, he said at the convention on May 31, so in order to preserve both a union of states and national rules that could be compulsory, framers ended up embracing a government that operated not on the states, but directly on the individuals composing the states. Proportional representation served as the groundwork for this new government, the thought went, because it fed on reciprocity: individuals would transfer power to the rulers, and those representatives, so authorized, would operate on individuals in turn. National rules in the United States, though, would operate not only on those who had, in theory, voluntarily consented to the new government, but as Madison disclosed in Federalist No. 39, on “all persons and things.” The miracle of democratic sovereignty contained within itself a promise that became a lie.

Now, before the convention, Madison thought he had hit upon insights that would pave the way to framing a government rid of the evils (he called them vices) suffered by political communities in ages past. He realized that in America, effective political power and the subjective right of majority rule were not synonymous, and indeed, that a minority could league, say, with a portion of the population denied suffrage, like slaves, to best opponents. As he wrote in notes he called “Vices of the Political system of the U. States” just before the Philadelphia meeting, prose he would use again in a speech on June 19:

One third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government. Where slavery exists the republican Theory becomes still more fallacious. [2]

He would circle this thought again in Federalist No. 43 in January of the next year when he argued that slaves might give a competitive edge to any group with which they associated, thereby moving “the minority of CITIZENS” to become “a majority of PERSONS, by the accession… of those whom the constitution of the State has not admitted to the rights of suffrage.” [3]

Madison conceptualized the Constitution as an alternative to civil war, yes, but if national rules operated on “all persons and things,” irrespective of consent, and slaves could assume a political character through civil violence, driving a wedge between subjective right and power, then the new plan of government had a weak spot, stinking and raw, rotten though new, vulnerable to those whom it refused a share of sovereign power, as likewise the choice to escape a condition exhausted by expressions unrelated to claims on their part. The drafters of the Constitution in 1787 determined that any union, if sustainable, would have to overcome the confederation’s “fatal” reliance on the states, but the solution, a government that did not require the intervention on the states for its efficacy and could instead operate on the population directly, worked no cure and secured no lasting peace, because those objects of national governance who had no authority, and no choice, posed an ever-present challenge to a union whose drafters wanted it to spin centripetally instead of centrifugally. The enslaved fiercely warred with those who held them in slavery, and the history of American government since 1787, then, has unfolded not from state houses, but from plantations of tobacco and cotton and lynching trees.

The U.S. Constitution committed the groundwork for the U.S. government to a scheme of representation that counted those denied a share of sovereign power. This pried the gap between “persons” and “people” wide open, and it enshrined the inhumane depths of the former at the highest level. The enslaved and black embodied the rights of the free and white in the United States, and that truth is deeper than the life and liberty glimpsed by a declaration that witnessed United Colonies become United States. After the Civil War, when the Thirteenth Amendment eliminated slavery except as punishment for crime in 1865, a uniquely American heritage built on this foundation endured. To deny its reach is to miss the magnitude of the wrong.

Whenever there is room in the public sphere for any of us — representative or represented — to do violence to one another, discriminate, or condescend, it occurs in a space permitted by a plan of government that internalized the violence required to empty rule of true power. If one of the goals of the paper finished on September 17, 1787, was to “insure domestic Tranquility,” then it failed on its own terms, and no recovery or redemption will come until the voices who inhabit this country choose to order the future differently. That work is the size of liberty dreamed of but not guaranteed, and it has force enough to make real what Marshall spied decades ago at the bicentennial. “The true miracle was not the birth of the Constitution,” he said perceptively, “but its life.”

Dr. Julie J. Miller is a research associate of the Charles Warren Center for Studies in American History at Harvard University. She recently completed her dissertation, a history of the idea of a person in the intellectual, constitutional, and political history of the United States.

 


[1] Speech given on May 6, 1987, reprinted in Thurgood Marshall, “Reflections on the Bicentennial of the United States Constitution,” Harvard Law Review 101, no. 1 (1987): 2.

[2] The Papers of James Madison, Congressional Series, ed. Robert A. Rutland (Chicago: University of Chicago Press, 1975), 9:351. Madison’s letter to Jefferson a month after the convention, on October 24, can be found in the same series at 10:207.

[3] All quotations from the Federalist have been taken from Alexander Hamilton, John Jay, and James Madison, The Federalist: A Commentary on the Constitution of the United States , ed. Robert Scigliano (New York: Modern Library, 2000), 58 (No. 10), 239, 245 (No. 39), 280 (No. 43).

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