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A Brilliant Solution: inventing the American Constitution

Author: Carol Berkin

Harcourt, Inc., 2002

The American Revolutionary war ended in 1784. There was economic depression. Berkin writes that the Continental Congress "faced a host of angry creditors, foreign and domestic, clamoring for repayment of wartime loans." The Continental Congress had no means to put money into the empty federal treasury, its source of revenue being the generosity of the states. Relations between the states were poor, and many questioned whether they would remain united. "A profound localism," writes Berkin, "still trumped any embryonic identity as 'Americans.'" In 1786, writes Berkin, men from every state "agreed that a serious crisis had settled upon the nation. The question was could they do anything to save their country." Berkin tells in her 200 pages of most readable text the story of the attempt: the Constitutional Convention to revise the Articles of Confederation. In other words, the creation of the U.S. Constitution.

Berkin presents the framers of the constitution – the fifty-five delegates to the convention – as real people, as men of their time, as men of the hierarchical eighteenth century rather than men with twenty-first century sensibilities. They did not discuss any need to end slavery or equality for women. Jefferson, in France at the time, described the framers as "demigods." But Berkin is skeptical. She is an historian, working with documents that tell of realities. She is not  interested in putting them on pedestals as others have or influenced by the spin of those who have described the founders as men working with the godly attribute of clairvoyance.

Most of the delegates were lawyers, which, writes Berkin, "may explain the verbosity on the convention floor." Most of them were born into wealth "although a minority had risen from obscurity to wealth by virtue of some combination of talent, luck, and well-made marriages." None of the delegates, writes Berkin was "a man of ordinary means, a yeoman farmer, a shopkeeper, a sailor or a laborer." She adds: "Few if any of the delegates questioned the class, gender or racial bases of their privileged status." And they "spoke of 'equality' or 'unalienable' rights as if these were universal in a society that sustained slavery and female subordination."

Berkin is not belittling the delegates. These are the men who produced what she calls the "brilliant solution." She is interested in them enough to include a short bio for each of the delegates – 50 pages following her 200 pages of text.

In her text she writes:

... in personality and character, the delegates were as varied as any elite group might be. A number were self-sacrificing, honorable to a fault, above reproach in personal and public matters. Others were vain, ambitious, even unscrupulous in their political and private relationships....As Madison's notes would reveal, the convention had its share of windbags and fiery orators. And as the character sketches made by William Pierce would show, it also had its share of eccentric dressers and dandies, alcoholics and snuff addicts, mediocrities and boors.

The delegates wrestled with issues and verbally with each – as the imperfect do. There were no romantic speeches or fiery oratory. This was an attempt to work a nuts and bolts compromise – something between the concerns of those adamant in their support for states rights and those more in favor of centralized power. "Every delegate," writes Berkin, "knew that in a tug-of-war between the states and the central government, any power granted to one must of necessity, diminish the autonomy of the other."

There were those who championed the elite against the mob. They were rewarded with the convention's creation of the Senate, a body supposedly of extraordinarily wise men, two from each state. Delegates from the larger states felt that this left their states under-represented, thus the creation of the House of Representatives -- a larger body with representatives for each state in proportion to the number of people in that state.

The delegates went into the convention concerned about the creation of a new congress and with many seeing the presidency as other than a critical branch of government. Not all of the delegates wanted an executive branch of government. But fears arose that the Senate and the House of Representatives might have too much power. For the sake of a balance of power they decided to give the chief executive the power to veto legislation – as some Europeans had offered to their constitutional monarchs.

It was proposed at the convention that the presidency consist of three men, and this was voted down. It was proposed that the judiciary have a veto over legislation similar to the president, but this also was voted down, eliminating more redundancy. And the president's veto power was not to be absolute. The delegates had an aversion to absolutes – a great strength. Congress could override the President's veto by a two-thirds vote.

The delegates discussed whether the president should be chosen by the people or by congressmen. They chose neither. Instead they chose the "electoral college." The framers of the constitution were concerned about bribery, so the electors were to meet separately in their own states and were not to be a member of the House or Senate. Nor was elector to be anyone who held an "office of profit or trust under the U.S." The framers decided that each state would select electors in number equal to its number of representatives in the House, plus two – its number of senators. The electors were to meet in their respective states and vote by ballot for two persons to represent their state. These two were to deliver the election results of their state, signed, certified and in a sealed envelope, to Congress, where the results were to be counted in front of congressmen and senators. And if there were a tie, members of the House of Representatives would select which would be the president.

Berkin writes that the delegates were "men who recognized the idea of compromise, who knew concessions had to be made for the greater good." But rather than believing that they had constructed a body of laws that would be everlasting, doubts about the future persisted.

Realizing their lack of clairvoyance and their imperfection in creating something that would fit the indefinite future, the framers of the constitution were wise enough to include in the constitution a capacity for change. Experiences down the road – the doings of human beings – were to be incorporated into the constitution in the form of amendments.

Copyright © 2003-2014 by Frank E. Smitha. All rights reserved.