Without major compromises by all involved and the agreement to avoid the contentious issue of slaver, the framers would never have written and ratified the Constitution

By Joseph J. Ellis
American Heritage, July 12, 2010
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The Great Compromise [two Houses of Congress, one apportioned according to population and the other according to states] finessed a core question, leaving ambiguous the location of the line between federal and state sovereignty. Without much doubt, the Great Compromise accurately reflected the conflicting opinions present in the room. But it thereby left unresolved the crucial question: did the Constitution announce the arrival of a new nation-state or a more tightly bound confederation of states? The passage of time provided a different and more pragmatic answer. Namely, the Constitution provided a framework within which that question could be posed and answered on a case-by-case basis. The final answer would be determined not in Congress or in courtrooms but on Civil War battlefields. The second Great Compromise brokered that summer was an accommodation with slavery, the proverbial ghost at the banquet that haunted the deliberations, so controversial and threatening that the word itself is conspicuously absent from the final draft of the Constitution. Madison acknowledged that the slavery issue was the most divisive topic at the convention: “It did not lie between the large and small States. It lay between the Northern and Southern . . . principally from their having or not having slaves.”

Slavery insinuated itself into virtually every contested question at the convention, chiefly because its very existence posed an overlapping web of moral, political, and economic questions that could not be ignored. But the explosiveness of the subject dictated a code of silence that precluded candid conversations, creating an understanding that the word must never find its way into the final document.

Despite this etiquette of avoidance, the unmentionable subject became the occasion for two significant compromises. The first and most famous—or infamous—compromise was the three-fifths clause, whereby slaves (i.e., “that species of property”) would be counted as three-fifths of a person for purposes of representation in the House. Madison acknowledged his own discomfort with the doctrine, observing that “it may appear to be a little strained in some points.” It was in fact an awkward bargain between Southern delegates, who wanted slaves counted as full persons, and Northern delegates, who did not wish them counted at all.

The second and less renowned compromise on slavery—Madison called it “the sectional compromise”—was a backroom bargain between the delegates from New England and from the Deep South, specifically South Carolina and Georgia. The former agreed to an extension of the slave trade for 20 years if the latter supported a provision making all federal laws regulating commerce a mere majority vote rather than a supermajority of two-thirds. Though slavery was the underlying issue, the compromise is often described as a political bargain between the commercial interests of New England and the agrarian interests of the Deep South.

These two compromises, which implicitly committed the newly created federal government to an accommodation with slavery, plus the failure of the delegates to include any explicit condemnation of slavery as a contradiction of republican principles, rendered plausible the subsequent judgment of abolitionists such as William Lloyd Garrison that the Constitution was “a covenant with death.” They also support the recent neoabolitionist interpretation by David Waldstreicher, whose Slavery’s Constitution says it all in its title.

The ringing clarity of that designation needs to encounter the more muddled reality, namely that neither the strongest advocates for slavery nor its most strident opponents left Philadelphia believing they had gotten what they wanted. Antislavery delegates wanted an immediate end to the slave trade, an explicit statement prohibiting the expansion of slavery into all the western territories as a condition for admission into the union, and the adoption of a national plan for gradual emancipation akin to plans already adopted in several Northern states. Proslavery delegates wanted no restrictions placed on the slave trade or on slavery in the territories, and a specific provision assuring the property rights of all slave owners. Both sides went back to their respective state ratifying conventions apologizing for their failure to win an unequivocal victory.

For those who believe that the Constitutional Convention was the last realistic opportunity to put slavery on the road to peaceful extinction—and hindsight offers some support for that belief—then the framers unquestionably missed that opportunity and failed that test. But within the

historical context of 1787–88, during the deliberations in Philadelphia, and then the debates in the 12 ratifying conventions (Rhode Island boycotted the whole process), neither the proslavery nor antislavery advocates believed that they had resolved the question one way or the other.

The second Great Compromise, much like the first, postponed a deeply divisive political problem that seemed impossible to resolve at the time. It was clear to all the delegates that a definitive resolution of the slavery question—most especially any insistence that slavery be gradually phased out—would have doomed passage and ratification of the Constitution. The distasteful but nonnegotiable reality was that one could have a nation with slavery, or one could not have a nation. Every argument about the accommodations with slavery reached by the framers that summer in Philadelphia should be made within the context of that reality.

Of all the political compromises in American history, the second Great Compromise brokered at the Constitutional Convention was probably the most controversial and most consequential. Much like the first Great Compromise, the decision it delayed eventually required a Civil War to resolve. The celebratory glow surrounding the framers today needs to be replaced by a more somber light, and the moral podiums from which people second-guess their judgments should be put aside forever.