American History Hit - Birth of the US Government: The Constitutional Convention

Episode Date: July 27, 2023

Beginning with the enduring words, 'We the People of the United States', the US Constitution is the basis of the government and its three distinct branches. So when was it written, and by who?Mary Sarah Bilder is Founders' Professor of Law at Boston College and finalist for the prestigious George Washington Prize. She joins Don today to take us through the history of this keystone of the history of the United States with cameos from Washington, Madison, Hamilton and Adams to name just a few.Produced by Sophie Gee. Edited by Siobhan Dale. Senior Producer was Charlotte Long.Discover the past on History Hit with ad-free original podcasts and documentaries released weekly presented by world renowned historians like Dan Snow, James Holland, Mary Beard and more.Get 50% off your first 3 months with code AMERICANHISTORY. Download the app on your smart TV or in the app store or sign up at historyhit.com/subscribeYou can take part in our listener survey here. Hosted on Acast. See acast.com/privacy for more information.

Want to explore even more history? Sign up to History Hit, where you will discover history from around the world. From the American Revolution to prehistoric Scotland, there is plenty to discover. With your subscription, you'll unlock hundreds of hours of exclusive documentaries with a brand new release every week, exploring everything from the ancient world to World War II. Just visit historyhit.com slash subscribe to bring the past alive. It's a structural symmetry, this building of elegant Georgian design, a neoclassical order made of humble red brick and off-white woodwork. A clock tower rises overhead and a belfry where the Liberty Bell, as it will one day be known,

hang suspended between pillars that narrow to aspire. In the torturously hot and humid summer of 1787, the windows of this now famous building, the old Pennsylvania State House, have been nailed shut for secrecy as delegates from 12 of the 13 states, Rhode Island being conspicuously absent, are gathered. Many of these same men convened 11 years earlier to sign the Declaration of Independence, proclaiming their new nation free from British monarchy.

Now they have undertaken another bold challenge, deciding in a short matter of months how the separate states of America can somehow be more effectively united. Hello again. Welcome back to American History Hit. I'm Don Wilden, glad you could join us. The year 2037 looms large in our future, but I'm betting not enough Americans could tell you why. We hope to change that in the next half hour.

In that year, still 14 years off as I speak into this microphone, we will celebrate the 250th anniversary of the founding of this nation. More specifically, the gathering of 55 framers who in the Philadelphia summer of 1787 hotly debated the various ideas of how to govern the country, and then drafted the original words of the Constitution of the United States, that document which finally laid out the basic foundational structure of federal governance of our nation, and which today, remarkably, we still abide by. For me, it's helpful to think of that year, 1787, as an end date, a bookend at the far end of the founding period, which begins in 1776, with the Declaration of Independence, 76 to 87, 11 years, and all of that which occurred along the way, a war of independence, a fragile system of 13 states united in name only, and followed by

an ambitious project to secure a true and organic national identity by way of a representative republic. All of that, historians call the commemorative era. And listeners, it starts in 2026 and lasts until 2037. We have more than a decade to get schooled up on the United States Constitution. And I propose we start right here, right now, in the company of a true expert. Mary Sarah Builder teaches a Boston College Law School in the areas of property, trust, and estates, an American legal and constitutional history. In 2016, she was named the Founders Professor of Law. Recent scholarship focuses on the early history of the Constitution, concept of a framing generation, Native Nations, and the 1787 Constitution. She has authored three books, including

Madison's Hand, revising the Constitutional Convention, which won the Bancroft Award, among others. And I would go on, but we have a show to do. Welcome, Mary Sarah Builder, to American history yet, I am humbled in your midst. Thanks, Don, for having me today. You know, I was lazy. I pulled that bio directly from your Boston College website. What does the concept of a framing generation mean? Well, one of the things that I find really interesting about this period is that there's

a tension always when we talk about this moment between the people who specifically drafted the document. We know those are all white men, property holders, many of them were enslaved or owned enslaved people and all of the people who belong in that larger, we the people. And that's the people of that moment. I like to refer to them as the framing generation. And that also in a lot of ways includes us because the preamble of the American Constitution begins with those really big, important words, we the people. And we know that the document itself speaks about ourselves and posterity. And so there's a generation we can talk about that existed in that moment. Like you said

in your introduction. It's a long period of time that gets us to September 1787 when the document under which this country is still governed comes into existence. And there's lots of voices and people who participate in that process. So this is going to be a basic and hopefully engaging discussion of the critical events that occurred in the summer months of 1787 from May 25th to September 17th, three and a half months as delegates from all 13 states came together in what is now referred to as a constitutional convention of the United States. First question is why. Why did this gathering need to happen and when? Well, in order to understand that we want to back up a little bit, because if we don't back up, we don't understand some of the crucial decisions of that summer. So we want to think about,

if we go back to, let's say, 1776, a date we're very familiar with. In that summer of 1776, American Congress declares independence. They write the Declaration of Independence, a document we're all very familiar with. And another committee is sent off to write a a document that will help lay out governing foundation. And that document is harder to write than Declaration of Independence. And we refer to that document as the Articles of Confederation. And the Articles of Confederation, which are basically finished a year later and then sent out to the states to be ratified, are controversial. They don't do the best job of governing the country. And it's in reaction to that that the Constitutional Convention is.

What was inadequate about the Articles of Confederation? Why did they not work? Well, the Articles of Confederation, I sometimes think people don't give, you know, John Dickinson, who is the drafter, enough credit. No one had ever tried to really imagine how you wrote a government into existence. There were some prior examples in English and actually Swedish history of all things, but no one had really thought about that. And so what Dickinson and his committee did was they really tried to constitutionalize the structure that had been governing the country since 1774, and that would govern the country through the Revolutionary War. And that was a Congress-focused structure. So Congress was really the big power, and all of the other branches were subsumed within Congress. So under the Articles of Confederation, there's only one branch, Congress. And there's no president. Well, technically there is a president, but he's just the chair of the executive committee. And there's no independent judiciary. So it's a very different to sort of a mono-institutional group. And then also very importantly, the voting structure, in that Congress was what we call equal state suffrage, equal state suffrage. And what that means is each state got one vote. And that's the way the states had decided to do it in 1774 when they came

together. So the idea was somehow the states, which no one was really even sure what a state was, but they were the former colonies, plus the three counties of Delaware who showed up demanding that they could be a state too. And so those entities, those sort of coming. into existence former colonies, all said we each get one vote. So there were basically one state per vote. And then it was very hard to change or amend that. In fact, you needed everybody to agree to amend it. So it was actually pretty good given everything. But as the country stabilized after 1783 when the war ended, it was an insufficiently strong document without an executive, without a judiciary and without strong national governmental powers.

In a way, I mean, it's almost naive to say it, but the Articles of Confederation are the ideal of what was fought for in the revolution. But did they expect that this would actually last? I mean, the idea of this country was that each state was its own republic, essentially, right? I think George Washington would disagree with that. I mean, I think someone like Washington who had fought the war and led the country really felt that if that was true of each state, state independent, they would be. picked off one by one. We forget what the geography of the United States looks like at this point.

It's a set of former colonies strung out along the Atlantic seaboard. We have Spain, French, and actually Great Britain, perfectly happy to come back into the game. And we have very powerful Native nations on both the northwestern side and the southwestern side. And so the sort of former English colonies are quite vulnerable. And Washington felt that in order to maintain sort of the integrity of those unified colonies, the new nation needed to have the sort of power to raise money. It needed to have the power to sign treaties and to stop the states from doing whatever they wanted. And it needed to have the power to pay the military, which is coming to existence. So Washington is actually one of the people who's really behind the Philadelphia Convention.

By 1785, he's begun to feel that the Articles of Confederation are insufficient. And he's sort of of behind the scenes prodding people and encouraging them and supporting them to think of having a new group of people get together and sort of revise the Articles of Confederation to create a bigger government. And behind his scenes is that rascal Alexander Hamilton, who's pushing this whole idea in a big way, and brilliantly so, but he's a tip of an iceberg of that whole group of people, what becomes the federalists, this notion that we need a stronger national government to control all of these different entities, which are the states. And to be respected by the European powers, we just have to remember what happens after 1787. You know, the United States fights another war to remain independent. And so the British are just sitting around waiting for this all to collapse. And, you know, we sometimes forget that. Hamilton's a great example here because he gets a bunch of people together in 1786, representatives of different states in Annapolis, Maryland. And he thinks that's going to be an opportunity to write a new form of government. But not very many people

show up. People didn't really want to go to Annapolis. And so Hamilton rather brilliantly realizes instead of declaring this party a failure, he redefines the party. And he says, oh, no, this was just a party to write a call for another party, another convention. And so what the Annapolis Convention does, realizing that it can't do anything, is it writes a document that it sends to Congress and it says, we think you should tell the states we need a new constitution, a new form of government. And Congress does that. And the invitation is sent out for late May in Philadelphia, 1787. Why that date? I've always wondered, this was not part of the congressional, you know, what had been going on as far as any kind of calendar. This was a special unique thing, right? Yeah, it's a really interesting question. The Congress

sends out a call in February of 1787 asking the states basically to come up with ways to pick deputies, which is the word they term, we call them delegates, to send to group. of people, a convention that will, as they put it, render the federal constitution, by which they mean the government under the Articles of Confederation, basically sufficient for the exigencies of the new country. And in some ways, summer is a great time to do something. It's a space in the year that, of course, if you're a farmer, it's not such a good time, but they thought, I think, other people would be able to show up. And they actually pick May 14th to start, but nobody shows up on May 14th. James Madison's there. Washington's there.

there, the Pennsylvania delegation just has to roll out of bed. But they need to have seven delegations in order to start. And so much to Washington's frustration, they basically have to wait around until the 25th for enough people to show up. And it's 55 people, give or take a few up, sure. But how do we arrive at that number? You've got 13 colonies, 55 people. Yeah, there was no requirement how many people you could send. So states actually elected different groups of people or chose different people. There weren't a lot of rules about how you got your people there. And about 74 to 75, weirdly historians disagree on how many people were actually going. But lots of people were like, forget it, I'm not going. And so of that number, 55 people over the course of that summer attend. But even that number is misleadingly high because lots of people only show up for a little while. And so we often refer to the Constitution, the instrument, the document being drafted by about

30 people, which isn't that many people there. And famous people like Hamilton kind of skeech in and out, He's there for a while. He is bored, goes home, comes back for the end. The New Hampshire delegation only shows up in July and Rhode Island thought that nothing good was likely to come of the Constitution as far as the state was concerned. And so they refused to send a delegation. And the initial idea is to amend the articles of Confederation. They don't know that they're necessarily getting together to write a brand new constitution at the beginning of this, do they? Well, I think this is something that historians really disagree about. You know, the call from Congress was to, render the federal constitution adequate to the exigencies of government and the preservation of the union. And the call didn't actually say, hey, just amend it. It basically said, do whatever you need to do to render it adequate to the exigencies. That's just a fancy word for necessities or needs. And preservation of the union. So I'm somebody who thinks that Congress was pretty sure that the document that came out of this or the constitution that was going to come out of this

was going to look relatively radically different than the one that went in. So I'm less bothered than some historians are by the way they went about it. I think they were well within the congressional charge. I'm going to fall flat on my face here and talk to a constitutional expert about the Constitution. A governing constitution is really about a balance of power. If it's going to work as a system, it assigns power equitably to each member state and then protects the whole from one state or group of states gaining too much power and controlling the others. In the case of the U.S., this is explosive stuff, having just fought a seven-year war to overthrow a monarchy that did exactly that.

It consistently inflicted its power upon its citizens. These delegates are walking a tightrope. How difficult is this process going to be? Because to me, it sounds excruciating. It's really difficult because not everybody agrees on what you just said. So some people, particularly people who are members from small states like Delaware, which had just sort of declared itself to be a state. and Connecticut, another small state, show up, and they're like, if we don't defend our rights as a geographic entity, we're going to become glommed on to some other state that's always wanted us.

And other people, like James Madison, for example, think that the idea of a state is intellectually incoherent and that all of the representation in a proposed bicameral Congress should be proportional by individuals. And so right at the outset, there are people who discerning disagree about the power that this, quote, idea of a state should have in the federal system. And so that's controversial from the get-go. And they also know that there's all sorts of things that not everybody agrees on. There are some things that we can tell people largely agreed on in response to the Articles of Confederation. So one thing that they all agree on is that the one branch Congress is a bad idea. They very quickly move to a three-branch system, to the

the idea that there will be a Congress, a legislative branch, an executive branch of some sort, and a judicial branch. And that mimics what had become the form of government very much accepted at the state constitutional level. And so there's enormous agreement on that. And they all agree that Congress needs to have more powers and that they really face foreign threat if they don't give Congress more powers. But beyond those two big things, there's just enormous disagreement. And a lot of people know there's disagreement because a lot of the people who should, show up, worked with each other before. So you have to remember that a lot of these people who come to Philadelphia in the summer of 1787 had been members of Congress or were leading governors.

And so it's not strangers showing up wondering what they all think. Lots of them know perfectly well what they all think and lots of them annoy each other. That's funny. This all happens in the famous building, what we call Independence Hall now, same place where the Declaration of Independence was written. It is going to happen in secret. They famously nail the windows shut. The middle of summer, that's going to be a problem in itself. James Madison will ride shotgun on this convention, at least at first. He comes to Philadelphia, as he said, earlier in May, and sets down the agenda. But he also comes with a preconceived notion of what this constitution will frame out. You mentioned the state governments as being kind of where this

all comes from. But what's the true antecedent for this? I mean, he was studying the ancients, wasn't he? Yeah, let me back up. We often refer to the convention as secret, but that's pretty much how convention and legislative things happened. The idea that the public is supposed to show up and get to hear everything is just beginning to develop in this period. In fact, the Senate, when it comes into existence, is closed to the public up through the controversial J. J. Treaty debates. And so it's confidential, but it's not yet completely outside the norm of how you did things. I'd like to think of it a little bit as like, we don't think that we should all show up and watch the Supreme Court justices debate, even though one can make a pretty good democratic argument for that.

And so it's a little bit like that, like the norms haven't come. Madison's really interesting. Madison's very young. He actually wasn't particularly famous at this point. And he came to the convention along with other members of the Virginia delegation, which includes George Washington and the very tall debonair Edmund Randolph, the governor of Virginia, have a plan. And that plan is we refer to as the Virginia plan.

I always joke to students. There's lessons for getting stuff done that you can learn. from the convention. And the first lesson is the people who show up with a plan control the debate. And so by showing up with a plan that looks very different than the Articles of Confederation, right from the get-go, the Virginians alter the debate around their plan instead of debating, well, what little things should we shift about the Articles of Confederation. And so Madison and I think Washington's behind the scenes here are quite clever in sort of taking control of the ground right from the get-go. cool thing about studying the events of the convention is it's a great one to unpack the document

itself. They begin with the Congress, its overall structure, then begin to untangle the other branches. The idea of a bicameral two-house Congress, this largely comes from the state systems already in place. At all based on the English Parliament, is that true? Well, it's really hard. You know, the English parliament had a House of Commons and an upper branch. And there were different ways to justify that. Going way back to Aristotle, there was a long notion that government should represent the one, the few, and the many. And so that's a long concept in kind of a Western political thought. But who the one should be, they didn't think it should be a monarch. Who the few should be, well, they didn't think it should be aristocrats with inherited power.

And who the many should be is that everybody is that a racial many that is excluding people who aren't white? Is it excluding people who aren't men? Is it excluding people who don't own property? Those were all contested. And so they begin by trying to figure out where power is going to lie. And that's really a huge part of the first six to eight weeks of the convention is debating. Are the states going to be represented as states in the system? And people like James Madison think that's just an error and they shouldn't be any fights over and over again to have proportional representation in the lower house and the upper house. And other people, particularly small state people, are like, you're crazy, there needs to be balanced here. The states need to get a vote also.

And literally, the convention, as you say, begins in May, only in mid-July, basically July 17th, is that finally resolved. Madison finally loses. And what we have is called the Connecticut compromise. It's the thing that gives us the Senate and the House of Representatives where the House of Representatives is based on a proportional type of representation and the Senate represents the states. But for two months, they basically fight that out. There was some similarity in that you have to have, according to these guys, one house that's more of the People's House, which is the House of Representatives. And then you have this sort of property owning class, which is represented by the Senate. That, of course, doesn't last down

the ages. But that was always the idea, generally speaking, right? That is even controversial. So right from the get-go, people like Madison and particularly some of the Deep South deputies and delegates want the Senate to represent property. And what they mean by property is not just landed property, but people who own other people, who own people who are black. And Madison actually at one point, in order to win proportional representation in both houses, tries to build a block of large states and states that had very extensive, legalized, race-based slavery. And he basically says, let's have the Senate represent those interests. What he means by that is you count each enslaved person as a person for the purposes of having

a delegate at Congress, but those people can't vote. So it basically gives white people, white men in those states, much more power. And that's very controversial. And at the end of the day, that fails. Instead, we get the three-fifths compromise, the very infamous three-fifths compromise, only with respect to the House of Representatives. And that compromise was that five enslaved. people would count as three white people for the purposes of how many congressional delegates you received.

Heck of an idea. We will come back to that in a moment because I want to talk about that in a little more depth. I'm James Patton Rogers, a war historian, advisor to the UN and NATO, and host of the Warfare podcast from History Hit. Join me twice a week every week as we look at the conflicts that have defined our past and the ones shaping our future. We talk to award-winning journalists. this peculiar strain that we all came to know very well in the mid-2010s really got its start because of the U.S. invasion of Iraq. We hear from the people who were actually there. The Sudanese have been incredible. They have managed to get supplies to people, to individuals who are suffering.

And we learn from the remarkable historians shining a light on forgotten histories. For the most part, the millions of people who were taken to those camps were. immediately murdered. Auschwitz combined the functions of death camp and concentration camp and slave labor. Join us on the warfare podcast from a history hit twice a week, every week, wherever you get your podcasts. Let's address the obvious absence in this document of representation of women, Native Americans, African Americans. I know I'm applying a modern sensibility to this, but in general, what was the thinking at this time how the Constitution would account for these other human beings representationally. Were the framers just fine with white males making all the decisions

forever in America? Was that how they saw it? No, I mean, I think this is a thing where we have to remember that, you know, we sometimes think that there's consensus in the sense of agreement on these issues, and there's actually a lot of disagreement on these issues. New Jersey, for example, in this period, allowed women and people of color to vote. And women vote and people of color up through the early 19th century. And so this is contested. Not everyone agreed. on this. And I just wrote a book, Female Genius, about a woman who gives speeches to the delegates. She's the first woman public lecturer and argue that that's an example of political capacity. And that's, in fact, why the documents ends up being written in a gender neutral style for

the 18th century using the word person instead of using the word male in the document. And so we also know that in this early period, the Constitution doesn't explicitly bar African-American people from voting. It refers to free people. Now, that's a very controversial statement. The reality is that hundreds of thousands of people are held as enslaved people, but there are free African Americans, and the Constitution doesn't bar them. And Native Nation representatives show up in Philadelphia in that summer. I recently wrote a little piece about that also. And it's not yet clear how all of those groups are going to fit into this larger understanding of Constitution. One of the things that's going to happen in the 1790s into the 19th century is people in power who are white-propertyed men are going to realize

that one of the things that this new genre of legal document or written constitution does very effectively is if you can write language that excludes people from political power, it turns out to be really hard for them to get that political power back. And so in the early 19th century, what we see is the rise of constitutions that explicitly limit political power only to white men. But that's not true. Interestingly, even though the Constitution embeds slavery and slave power in all sorts of ways, it doesn't actually look exactly like the way the 19th century exclusionary constitutions look. And that's because of these debates, right? That's because of those voices who are dissenting. There's a lot of different voices in this moment and people haven't really completely sorted out. I mean, this is what I believe, exactly who should come into political power and who should not. The convention has a large number of people from the Southern delegations and James Madison, also in particular, who want to make sure that power to continue to hold African Americans in slavery is upheld by the federal constitution.

And then there are other people, Governor Morris from Pennsylvania, Alexander Hamilton, who don't want that. And so that's very controversial at the convention. And in some ways, the Philadelphia Convention is the first real moment where a lot of people understand within the. the convention that there are people who are willing to take the government down to preserve their right to own other people. And Governor Morris actually says this. James Madison recorded this in his notes that he heard this, that Morris basically says, you know, in not so many words, like, I can't believe you all are so committed to continuing owning people. But the Deep South delegations basically are like, that's how committed we are. But the Constitution itself is,

in curious ways empowering of those interests and in curious ways ambiguous about that. It's the ambiguity that leaves the door open, I guess, and at least that's reassuring that that's involved in our founding document. Yeah, and I think this is important to recognize that even though the reality is that the Constitution will empower and the continuation of legalized race-based slavery for a long time, it will give the Three Fifth Clause, will give those interests more political power, the fugitive slave clause will mean there are no places where people can really be completely free. Also, other people find in the federal constitution the fact that the word slave and slavery never is written in the possibility of interpreting it as an emancipatory

freedom promising document. And Frederick Douglass is somebody in the 19th century who really uses that rhetoric very powerfully to argue that there's a promise about ending slavery in the document itself. So the Virginia plan frames out this model. Strong central government, three branches, executive, legislative, and judicial. We all learned that in grade school. The legislature split into two entities, the Senate and the House. Each state would be represented proportionally based on its size of population. This becomes the major sticking point. And I mentioned this before. We're circling back to this apportioning thing. They discussed this all throughout the month of May and into June. The New Jersey plan, as you say, William Patterson, proposes that you give the state equal say,

regardless of size. And this is the fear that a large state or number states will dominate the smaller by virtue of their number of votes. And the upshot of that is that states represented by population can equal that out, right? Yeah. So what the classic sort of little important history that we all probably drew little diagrams on pieces of paper about is that there's the Virginia plan. That's sort of the starting plan. The convention is debating as a giant committee. And they're like, yeah, make some changes to the Virginia plan, but looks good. And then the small states are like, whoa, whoa, whoa, whoa, whoa, whoa. And then they realize they need a plan to stop the Virginia plan. So they quickly draft up a thing that looks like kind of the Articles of Confederation with three branches on steroids. And they say, how about this plan? And that's also a really good thing to realize. Sometimes you need a plan to block a plan. And so the New Jersey plan says, well, the states should still be equally represented. And everyone says, what? Okay. And then what's really interesting for people who like to geek out about

Alexander Hamilton is Alexander Hamilton comes in and gives a long day speech. She speaks the entire day about his idea of a plan. And his idea of a plan is a much more monarchical-looking plan that would actually put the government looking a lot more like the British government. And so now that it looks like they might have three plans, sort of super monarchical looking plan, the Virginia plan, and the New Jersey plan. And now the Virginia plan is what sometimes political scientists call policymaker be. It's our temptation to always want the middle choice. And so presented like that, the delegates are like, well, how about the Virginia plan? But the New Jersey people now have some leverage and they fight and fight and fight and fight and fight and fight. And finally, the constitutional convention compromises that

doesn't mean they agree. They just continue basically to split vote, split vote, and finally people are like, we just got to move on. And so with a divided vote, but in favor of a bicameral Congress, One branch representing the states, one branch representing proportional representation. They move on to decide other things. But it isn't a consensus decision. Everybody doesn't say, what a great idea. James Madison always thinks it's a rotten idea. Thomas Jefferson writes from Paris to Madison, hey, that's kind of charming. What a great idea to do that. And it comes down to us as a very important fundamental principle of the way our country comes to be governed. Over and over again, they block heads. And then finally they're like, we're not getting anywhere.

We're just going to leave it like this and move on. How did the two-senator form come to pass? Oh, it's a great question. They each state gets equal state representation. And in the congresses before the Philadelphia Convention, you could send X number of people, but you had to have at least a certain number on the floor in order to vote. And so they just decide you can have two people and they can actually both vote. And that's a very important shift from the delegation idea, which is you get

one vote as a state. And what that will allow over time the Senate to do is change how those senators are represented. So one thing people don't always remember is that the 1787 constitution has senators chose and are elected out of state legislatures. So they're a very tight fit to states because state legislatures elect them. Basically, the run-up to the progressive era in the late 19th century, that is changed so that we now directly elect the Senate. So you vote for. each senator. And that means the senators are elected by each state and by the people of each state. And so it's now slightly more attenuated representation of the states. But for the first 100 years, it was a very tight state representation. And just to put a button in this, Mary, the three-fifths

compromise, which is agreed to eventually, is really about the southern states getting enough votes, you know, the proportionally enough votes in this House of Representatives. It's a lower population down south because these are big plantations and all the rest. They want more say in the Congress. Therefore, they want their enslaved people to count for this in some way, right? Yeah, the three-fifths compromise gives enormously additional power to states that enslave people. And the people who benefit from this at the time is Virginia. Because Virginia in Virginia is the largest number of enslaved people.

The southern states will rise after that. But Virginia really benefits from this. And it's just always important to remember that you were getting political power for enslaved people in states where enslaved people were not allowed to vote. And that's, you know, in some ways, just important always to emphasize because people sometimes don't remember that. So it gave white male power out of those states more power. And that plays forward. Political scientists have shown that what that means is that the southern part of the country, the part of the country that does not begin to abolish slavery. abolished slavery in this period, continues to have sort of more political power nationally than they would have without the three-fifths clause. It works throughout the 19th century, right up to the Civil War, right? Yeah, it's very powerful in the 19th century. And in fact, one can see the power of that idea when the confederacy forms, the Confederate states form a Confederate constitution. And one of the ways in which the Confederate constitution is radically different from the U.S. Constitution is that it uses the word

slave explicitly, and it really embeds that power into the document. But there are often referred five provisions, at least in the federal constitution of 1787, that give power to slave interests to the interests of slave power. And the three-fifths clause, which appears in two places, are two of those five places. Yeah, it's a wacky kind of leverage is that they pull on that one. But it's one of the big takeaways from this conversation that people should remember that the three-fifths compromise has everything to do with what leads up to the civil war, really. Executive branch is also a thorning discussion. Some delegates push for a powerful single executive, others for even a triumvirate like the Romans. Again, the problem is always how to play chess with a game of checks and balances.

If you have more than one individual in charge, you actually are in more danger of a factional power play. If you have one, that is for many, he could be a potential monarch. So how do they make this decision? They do it pretty quickly, don't they, in late June? Yeah, they show up. The Virginia plan refers to an executive, but a trivia piece that we historians like. is it doesn't actually describe who the executive is. And that has been thought to be in deference to Edmund Randolph, who's the guy who actually, they said, introduced this plan because he was very fond of the Roman triumvirate model. Everybody knows, basically, you're going to end up with a single executive.

And Randolph says, no, it's terrible. He actually uses the very unique phrase, fetus of monarchy, basically saying you're going to end up with something that looks like a baby monarch. And people are concerned about that. And so one of the challenges in imagining the executive is to imagine how you create a single executive that isn't going to be a king, that isn't going to be a monarch. And that's a big struggle. It's easy for them because the guy sitting in the room, president of the convention, is George Washington. And they all assume that George Washington will be basically the president. And Washington had very famously resigned from the military at the end of the war. And that was something. that in classical history, military leaders didn't do. The great danger was military leaders didn't resign from power. They then became sort of dictators. And so Washington's past actions in giving up power reassured a lot of people in the room that if he was president, he would give up up power.

And Washington actually fulfills this. When he becomes president, there is no term limit on the presidency in the Constitution. But after two terms, Washington basically says, I think it's really important that we not have presidents who become dictators. And so I'm voluntarily going to only serve two terms. But the Constitution struggles to figure out how do you give the executive enough power to be effective, particularly with respect to the military and all of the myriad decisions that someone needs to make, and yet not have that person be monarchical, not look like a king. And you do that by giving the Congress the ability to kick them out, right? You do that in all sorts of ways by creating checks and balances. And this is where, you know, I sometimes

think about people who are famous in American history who aren't at the convention. So John Adams, who had drafted the Massachusetts Constitution of 77 and 1780, which was very famous for having checks and balances was in London. He was the ambassador to London. And he wasn't in Philadelphia, but he had written a book, defenses of the American constitutions, which emphasized the importance of checks and balances. And that book was serialized in the newspaper every week in Philadelphia during the convention. And so even though John Adams, who annoyed them all, wasn't there, every Friday they had to read another chapter of his insistence that the government be characterized by checks and balances. And I think checks and balances is really a critical

aspect of how we understand the federal constitution. Each of the branches has power with respect to another branch. None of the branches get to be supreme. And this is really emphasized by the final drafting committee that rewrites the Constitution into the famous three articles, Article I, about Congress, Article 2 about the executive, Article 3 about the judiciary, embedded in all of those articles are references to the other branches. And so no one is supposed to ever have the type of monarchical power that they had rebelled against. Was that as innovative as we've been taught the checks and balances, and other documents like this in the past? Well, they imagined that the British Constitution in theory had checks and balances,

not with respect to the judiciary, which they weren't that interested in. They had thought that the long struggles in the 17th century in particular in creating the English Bill of Rights, the Declaration of Rights by Parliament, had been examples of how the crown had been checked. And so they understand a sort of checks and balance idea within that. And then there was a long, we would think of as political science, history of looking at all sorts of examples of Greek, Roman, European countries and sort of telling a story where the ones that had checked different branches survived and the others

collapsed. One of the things about this period that's interesting is they had a deep belief that once people got political power, they were inherently corrupted by that power and they became desperately filled with ambition. And in order to keep that power, they would break the rules of the Constitution and they would pay off their favorites and they would be surrounded by minions who only told them corrupting things. And they really believed very deeply that political power was inherently corrupting. And so the great goal was to create a system that sort of allowed people who wanted to have political power, enough room to run the system, but then control the ambition and inherent corrupting tendency of that power. And in some ways,

they were just sometimes more sophisticated than we are about the inherent corruption of political power. And so the system that they wanted was designed to sort of prevent people from undermining the system itself once they came into political power. I would imagine they would view the increased power of the executive branch in our age as a sort of a corruption of the idea of the presidency, right? I mean, there's so much power in that office now that much of their fears have come true. I think they would be stunned that 13 states on the Atlantic seaboard under a constitution that they'd written pretty speedily in a summer was still governing a country of, you know, 300 to 400 million people. I mean, I just think they would just sit there if they were drinking a beer with you, Don, they'd just be like, no, no, no, we're not going there. Like, how crazy is it?

I know. Like, you guys are still thinking that the words we wrote are the way to govern your country. And we have to remember that the Constitution has been repeatedly. amended in very important ways since then do all sorts of things to alter how the executive is understood. And really, I think very importantly, in the 20th century, after Franklin, Delano Roosevelt manages to serve four terms, we create a constitution that says you only get two terms. And so there's ways in which sort of structurally the constitution's executive power gets pulled back. But it's important to remember also that the executive of the drafters doesn't look like our

executive. So the executive of the drafters is basically the person who gets the most votes, the president, and the vice president is the person who gets the second most votes because they don't think there are going to be political parties. And so it's always like, you know, high school student council. The first person gets to be president, the second person gets to be vice president. You know, you imagine Trump Clinton, Biden, Trump, all of these things that are very hard for us to imagine. That's how they imagine the presidency. And so the system works incredibly different. after the 12th Amendment, which allows for that, than it did in their period. You've organically brought us to the end of this conversation, unfortunately skipping the

whole other branch of the conversation, which is the judicial. So that's for another day. I just want to wrap up this process of how they end up signing this document and agreeing on it, which only leads to another greater process of ratification. This happens in the middle of September, right? It's in September. They're hot. They're tired. They're sick to death of the thing. They've sent everything to committees because everybody's gotten sick of showing up together. And everybody wants to go home. Like desperately, desperately, desperately wants to go home and be done. The final drafting committee takes over 20 scattered resolutions, and it forms them into the seven articles that are very familiar to us,

rather brilliantly grouping them according to what looks like a sort of institutional set of coherence. Literally, that comes back. Everybody's like, hey, cool, great. whatever, we'll write a letter, and then we'll sign it. Three people famously don't sign it, probably most importantly, George Mason of Virginia. And Mason was very upset that there was no Bill of Rights, by which he meant a document declaring rights of the individual. The convention had actually had a vote for this, and they voted it down unanimously. They said they weren't going to form a committee for a Bill of Rights, and that will obviously change after. You can have another segment on that.

Yeah. But the Constitution is signed on September 17th. And then very importantly, reprinted widely in the newspaper. And when we look at those reprintings, I love to look at them with students because what we see is lots of tiny little words that I don't think anybody read. But in big, big words in the printings of the Constitution are the preamble. So if you had been just a regular person reading the paper or looking at the paper, the part of the Constitution that you would have seen really, leaping out at you is the preamble. It's still the part of our Constitution that so many young kids in elementary school and secondary school memorized today. And in some ways, that is significant that at the time they thought the preamble was sort of in some ways the most important part. And in some ways, it remains true to us today. You mentioned other segments. I can't wait to do a segment on the Federalist Papers. The ratification process, the Bill of Rights, never mind all the amendments that come. This is a whole constitutional rabbit hole we're jumping into, thanks to you.

Mary Sarah Builder is a professor of law and founders chair at Boston College. As we've heard, she is an expert on the age of the Constitution. As if that isn't enough, she's also researching transatlantic feminism and Robert Morris, the early African-American civil rights activist and lawyer. My goodness, what a career. Thank you so much, Mary. We will definitely see you again on American History Hit. Really thank you.

Thanks so much, Don. Had a great time. Thank you for joining us on another episode of American History Hit. Please hit like and subscribe wherever get your podcasts. Leave a nice review there. And if you'd like to make suggestions on any future subject matter, send us an email at a.h at historyhit.com. Thanks a lot.

And we'll see you on the next new episodes dropping every Monday and Thursday. Bye for now.