Feb 25

Issue: Founding Fathers RSS

Fitting together uneven planks: The Constitution and the spirit of compromise



Posted 1 year, 1 month ago.

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Editor’s note: This is the third installment in a three-part series on civility at the Philadelphia Constitutional Convention – a joint project of ConSource and the National Constitution Center’s Constitution Daily.

In the first post in this series, Webb discussed the importance of civic friendship in setting the tone to the deliberations of the delegates to the Philadelphia Constitutional Convention. In this second post, he reflected upon the role attentive listening, openness to argument, and intellectual humility played in the substance of their deliberations.

By August of 1788, George Washington was thoroughly relieved. Having presided over a stormy constitutional convention in Philadelphia the previous summer, and having just witnessed the culmination of a rollicking yearlong, nationwide debate over the ratification of the Constitution in the states, he was simply relieved that they finally had something better than the Articles of Confederation.

“The merits and defects of the proposed constitution have been largely and ably discussed. For myself, I was ready to have embraced any tolerable compromise that was competent to save us from impending ruin.”Constitutional_Convention_1787Despite the considerable disagreement about the Constitution expressed between its proposal on September 17, 1787, and its official ratification on June 21, 1788, Washington’s sentiment that it represented at the very least a “compromise,” if not a “tolerable” one for some, enjoyed a broad consensus.

Throughout that period, the most common, contemporaneous description of the new Constitution was that it was, warts and all, the product of “compromise.”Just months after the Convention concluded, both John Adams and Thomas Jefferson, two men destined to spend much of their lives in fierce disagreement, independently wrote to their friends raving about the new compromise. Writing to John Jay on December 16, 1787, Adams described it as “the result of accommodation and compromise” “admirably calculated to cement all America in affection and interest, as one great nation.” Writing to James Madison on December 20, 1787, Jefferson said that “I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence.”

Four months later, Madison himself would observe to Jefferson that the reason he opposed convening a second constitutional convention in which to debate amendments was that “if a second Convention should be formed, it is as little to be expected that the same spirit of compromise will prevail in it as produced an amicable result to the first.”But while in retrospect many agreed that the “spirit of compromise” had happily prevailed in Philadelphia, at the time when compromise was most needed, the critical debate that raged over whether representation in Congress would be equal among the states or proportional according to population, it was anything but a foregone conclusion that compromise would win the day

Despite the warm, cross-sectional socializing and gestures of “civic friendship” that had prevailed throughout the summer, and regardless of the parliamentary rubrics aimed to encourage listening, learning, and intellectual humility, the debate over representation came very close to upending the entire convention.For two seemingly unmovable armies were set to clash by day and night over this issue. On the side of the large states that wanted proportional representation all the way down, many delegates like James Madison, James Wilson, and Alexander Hamilton refused to depart from this in any respect. Rufus King of Massachusetts nicely summarized their negotiating posture: “He preferred the doing of nothing, to an allowance of an equal vote to all the States. It would be better he thought to submit to a little more confusion and convulsion, than to submit to such an evil.” On the side of the smaller states that insisted upon equal representation, the intransigence was met in equal part. Gunning Bedford of Delaware, for example, insisted that “there was no middle way” between equal and proportional representation and threatened the large states that if they did not concede on the issue of representation, the small states might leave the union and ally themselves with foreign nations.As tensions mounted, civility deteriorated, and the prospect of dissolving the Convention became a distinct possibility, prompting George Washington to write that “I almost despair of seeing a favorable issue to the proceedings of the Convention,” three things intervened that helped bring the convention back from the brink.

First, a group of delegates from both large and small states, north and south, urged the Convention to transition from interminable philosophic debate to a posture of negotiation and compromise. Progress could only be made, not by further attempts to persuade others of rival first principles, but by a partial sacrifice, however grudging, of fully realizing one’s own principles and interests. Oliver Ellsworth of Connecticut said that “if no compromise should take place, our meeting would not only be in vain but worse than in vain… He was not in general a half-way man, yet he preferred doing half the good we could, rather than do nothing at all. The other half may be added, when the necessity shall be more fully experienced.” William Davie of North Carolina observed that “in general there were extremes on both sides. We were partly federal, partly national in our Union, and he did not see why the Gov. might not in some respects operate on the States, in others on the people.” And Benjamin Franklin, in many respects the delegate most adept at lowering the temperature of the proceedings, and who in his Autobiography urged his readers to “avoid extreams,” offered a characteristically homespun analogy. “When a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition.”

Second, getting the rough edges of the planks to fit together fell to a small committee appointed to hash out the thorny issue of representation and come up with a deal. For the delegates who advocated giving this responsibility to a committee, there was a sense that smaller might just be better. Hugh Williamson of North Carolina, who said that “If we do not concede on both sides, our business must soon be at an end,” thought that “as the Committee would be a smaller body, a compromise would be pursued with more coolness.” Out of the spotlight of the Assembly room where grandstanding and contestation had proved too irresistible a temptation for some, and in the more comfortable and convivial settings of Benjamin Franklin’s home, the nine delegates could quietly cobble together a compromise.

And third, key to the success of the committee was the critical mass of known moderates among its members. While the names of James Madison, Alexander Hamilton, and James Wilson echo down through history as some of the principal movers and shakers behind the scenes of the Convention, it was not these heavyweight figures, but actually the more unheralded ones like Abraham Baldwin, William Davie, and Oliver Ellsworth whose ability to compromise as members of the committee made them the indispensable men of that particular constitutional moment.

By September 17, 1787, the delegates had themselves enough votes to propose a new Constitution. But as with any difficult and important compromise, few were completely satisfied with the final product. Even in the Federalist Papers, Madison and Hamilton both conceded that the final product fell somewhere short of the ideal. Madison ruefully observed in Federalist 62 that several parts of the new Constitution could not be tested by theory because, “it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but ‘of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.’” And Hamilton wrote in Federalist 85, his final paper in their series, that “The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?”

It was that negative capacity of many of the delegates, in the end, to accept an incomplete victory, to lower the temperature of debate by moving beyond an interminable clash of first principles towards quieter, responsible compromise, and to empower a critical mass of lesser known moderates to do “half the good we could rather than do nothing at all,” that proved decisive in generating the proposed Constitution. As it was in 1787, so it was also in 1824, when Thomas Jefferson, just two years away from his passing, would provide this lovely coda on the importance of compromise to the kind of democratic government the Constitution had brought forth: “A government held together by the bands of reason only, requires much compromise of opinion; that things even salutary should not be crammed down the throats of dissenting brethren, especially when they may be put into a form to be willingly swallowed, and that a great deal of indulgence is necessary to strengthen habits of harmony and fraternity.” As we reflect upon what “We the People” accomplished now 225 years ago, it may be helpful to consider that before the delegates could “ordain and establish” a new government born in reflection and choice, they first had to “avoid extreams,” encourage “habits of harmony and fraternity,” and find ways to compromise.

Derek A. Webb is a fellow in the Constitutional Law Center at Stanford Law School. He recently won the American Inns of Court’s 2012 Warren E. Burger Prize for his essay, “The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention.”



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