The Constitutional Convention

The Constitutional Convention was a central event in the founding of the United States. Activities explore how slavery and the status of enslaved Blacks impacted key compromises about the framework of U.S. government, including the Great Compromise. The overriding contradiction of slavery in American life is examined by two documents: Thomas Jefferson's Draft Constitution (1776) and Thurgood Marshall's Bicentennial Speech (1987). The question of a constitutional amendment to abolish slavery as punishment for a crime is considered and a Media Literacy Connection looks at racism toward Black Americans in the media.

Standard 2.3:  The Constitutional Convention

Identify the various leaders of the Constitutional Convention and analyze the major issues (e.g., distribution of political power, rights of individuals, representation and rights of states, slavery) they debated and how the issues were resolved (Massachusetts Curriculum Framework for History and Social Science) [8.T2.3]

FOCUS QUESTION: What Were the Major Compromises at the Constitutional Convention and how Have They Impacted American Life and Government?

Mural of the Constitutional Convention

Mural of the Constitutional Convention at the United States Capitol
"The Constitutional Convention, 1787" | Public Domain

On May 25, 1787, 55 delegates from every state except Rhode Island arrived at the Pennsylvania State House in Philadelphia to begin the Constitutional Convention. Ranging in age from 26 (New Jersey’s Jonathan Dayton) to 81 (Pennsylvania’s Benjamin Franklin), the delegates met from May to September and debated the structure of the new government, representation in Congress, the rights of individuals, and the issue of slavery and its future. The compromises they made have continued to dramatically impact the nation’s history to the present day.

Once the meeting began, George Washington was elected President of the Convention. Although the attendees were sworn to secrecy, James Madison, the future 4th President, kept notes of nearly every day’s proceedings and other delegates kept notes as well. Based on that recorded history, historians and everyday citizens have the opportunity to explore the history-shaping developments of the Constitutional Convention and its key compromises: The Great Compromise; the Three-Fifths Compromise; the Commerce Compromise; the Slave Trade Compromise; and the Electoral College Compromise.

The men who wrote in the Constitution's Preamble that "we the people" seek to "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty" did so in a country that allowed and profited from African slavery. It was a contradiction between ideals and realities that America lives with to this day.

In his doctoral dissertation about the African Slave Trade written more than 125 years ago, W.E.B. Du Bois (1896) framed the contradiction thusly: "It was the plain duty of the colonies to crush the trade and the system in its infancy: They preferred to enrich themselves on its profits." Du Bois continued: "It was the plain duty of a revolution based on 'Liberty' to take steps toward the abolition of slavery: It preferred promises to straightforward action" (p. 152).

1.INVESTIGATE: The Great Compromise - The Virginia and New Jersey Plans

At the outset of the Constitutional Convention, delegates were divided over how much power should be given to each state in the new government.

The Virginia Plan, also named the "Large-State Plan," called for a two-house, bicameral legislature (law-making body), a chief executive (the president), and a court system.

The New Jersey Plan, also named the "Small-State Plan," called for a one-house or "unicameral" legislature where representation would be equal for all of the states. Under that plan, each state would get one elected official and one vote.  

The Assembly Room of Independence Hall

"Assembly Room, Independence Hall, Aug 2019"
by Mys 721tx is licensed under CC BY-SA 3.0

Delegates from the larger states tended to support the Virginia Plan because it would give them more power if representation was based on population, while smaller state representatives supported the New Jersey Plan because it would give them more power if representation was uniform across all states.

The Great Compromise created two houses of the national legislature: a House of Representatives whose membership was based on population and a Senate where each state had two voting members. There is more information about this compromise at a resourcesforhistoryteachers wiki page Constitutional Convention and the Founders.

Suggested Learning Activities

  • Role Play the Constitutional Convention
    • Conduct one of two Constitution Role Plays: Whose “More Perfect Union”? and "The Constitutional Convention: Who Really Won?" (registration required from Zinn Education Project)
  • Analyze How Amendments Became Part of the Constitution
    • The Founders realized that the Constitution was not perfect, and this led them to discussing and agreeing on the need for Constitutional Amendments and Ratifications, what became Article V: Amendment Process.
    • Read this article about the 13th Amendment: Abolition of Slavery.
      • Ask yourself: Why did this amendment need to take place and how did it come to happen? What would have happened if amendments to the Constitution were impossible?
    • Read this article about the 19th Amendment: Women’s Right to Vote.
      • Again, ask yourself: Why did this amendment need to take place and how did it come to happen?
      • What similarities can you find between these two events in American history? What differences?
      • What do each say about the importance of constitutional amendments as a way to make fundamental changes in American democracy? (A version of this activity was suggested by Shai Bocarsly, April 2022)

Online Resources for the Constitutional Convention

2.UNCOVER: Thomas Jefferson's Draft Constitution (1776) and Thurgood Marshall's Bicentennial Speech (1987)

Two documents—one by Thomas Jefferson, the other by Thurgood Marshall—written some 200 years apart, demonstrate the complicated connections between slavery and the Constitution.

Thomas Jefferson was a major slave owner; at any given time some 130 people were enslaved at his Monticello plantation (Slavery FAQs - Property from Thomas Jefferson's Monticello website). However, in his Draft Constitution for Virginia of 1776 (never debated and now largely forgotten) Jefferson called for ending slavery, specific rights for native peoples, outlawing most capital punishment, eliminating any standing army, and not allowing politicians to run for reelection.

More than 200 years later, on May 6, 1987, Thurgood Marshall, grandson of a slave, attorney in the Brown v. Board of Education school desegregation case and first African American Supreme Court Justice gave what has become known as the “Bicentennial Speech” to a patent and trademark law group meeting in Hawaii. Marshall stated that the Constitution was “defective from the start.”

Thurgood Marshall 1967

"Thurgood Marshall, 1967"
by Okamoto, Yoichi R. | Public Domain

While the founders avoided using the term in the text of the document, the Constitution, in Marshall’s mind, provided important protections to slavery (notably the Three-Fifths clause) that have undermined and contradicted American ideals since its signing. Here is the full Text of Remarks of Thurgood Marshall at the Annual Seminar of the San Francisco Patent and Trademark Law Association.

Suggested Learning Activities

  • State Your View
    • Do you agree or disagree with Thurgood Marshall’s conclusion that the Constitution was “defective from the start”?
    • Why was Thomas Jefferson’s draft Constitution not adopted?

3.ENGAGE: Is a Federal Constitutional Amendment Needed to Abolish Slavery as a Punishment for a Crime?

Although the 13th Amendment to the Constitution abolished slavery in 1865, it did so "except as a punishment for a crime." In recent years, lawmakers throughout the country have introduced amendments to state constitutions to eliminate that exception. Tennessee removed slavery and involuntary servitude from its state constitution in 2022. Utah and Nebraska did so in 2020. Still 10 states' constitutions allow slavery and involuntary servitude as punishments for a crime (Ballotpedia).

Will those remaining states choose to change their constitutions or is a federal constitutional amendment needed to fully eliminate slavery from law?

Slavery and the Constitution

The issue of slavery and its place in state and federal law extends back to the Constitutional Convention's debates about the slave trade, the economics of plantation agriculture, and the morality of human bondage in a nation where the Declaration of Independence had declared "all men are created equal."

Slavery of Africans had existed since the beginnings of European colonization. Although the first Africans arrived at the Jamestown colony in 1619, it is estimated that beginning in the early 1500s, more than 500,000 Africans had been brought to the Americas against their will. In total, concluded Henry Louis Gates, 12.5 million Africans were sent to the New World, however, only 10.7 million survived the Middle Passage.

Massachusetts was the first slave-holding colony in America—its colonial governor, John Winthrop, helped write the first law legalizing slavery in North America in 1641. Massachusetts abolished slavery in 1783 and declared the slave trade illegal in 1788 (The Case for Ending Slavery, Massachusetts Historical Society).

By 1787, 18% of the population of the United States were slaves; while in Virginia nearly 40% of the population was enslaved. In other states, slavery was in decline—Vermont was the first of the original colonies to abolish slavery in 1777; Pennsylvania in 1780. 

Map of Slavery in the 13 Colonies in 1770

"Slavery in the 13 colonies" by Stilfehler is licensed under CC BY-SA 3.0

At the Constitutional Convention, delegates debated whether slaves should be counted as part of the population in determining representation in Congress. Disagreement over this question led to bitter tensions among delegates. The southern slave-holding states wanted slaves counted to gain more representatives in Congress; the northern non-slave states disagreed.

In the Three-Fifths Compromise, it was agreed that slaves would be counted as three-fifths of a person for Congressional representation and taxes. While some delegates favored abolition of slavery, no one at the Convention proposed that African Americans should be granted citizenship.

The Three-Fifths Compromise gave states in the South, in the words of historian Garry Wills, a “slave power” whereby they received one-third more seats in the House of Representatives than if only the free population was counted. Wills concluded that “right up to the Civil War, the management of the government was disproportionately controlled by the South” (Wills, 2003, p. 6). A White Southerner from Virginia was President for 32 of the nation’s first 36 years (Washington, Jefferson, Madison, and Monroe).

After the passage of the 13th Amendment, officials in the Jim Crow-era South routinely arrested Black people for petty crimes, placing those arrested in forced labor.

The Abolition Amendment

In 2021, Oregon Senator Jeff Merkley and Georgia Congresswoman Nikema Williams introduced the Abolition Amendment to the federal constitution, prohibiting the use of slavery and involuntary servitude as a crime.

Given the oppressive legacy of slavery, what impact would a federal constitutional amendment have on people's historical memories and current criminal justice activities?

Media Literacy Connections: Representations of and Racism Toward Black Americans in the Media

Powerful, persistent, and pervasive White racism toward Black Americans - built into the structures of American government at the Constitutional Convention - has been perpetuated throughout history by negative media stereotypes. 

Emory University professor Nathan McCall tracked the development of this imagery from the founding of the U.S. to the Presidency of Barack Obama.

Black Lives Matter Shirt NYC
Black Lives Matter Shirt NYC by Shanluan is licensed under CC BY-SA 4.0

The following activities ask you to analyze media representation of Black and African Americans to uncover stereotypes and, in response, design media that affirm and celebrate Black lives and culture.

Suggested Learning Activities

Online Resources on the Three-Fifths Compromise

Standard 2.3 Conclusion

The basic structure of American government was assembled through the debates and compromises of the Constitutional Convention of 1787. INVESTIGATE examined the "Great Compromise" that created the national legislature with a Senate and a House of Representatives. UNCOVER explored the visions of equality and justice in Thomas Jefferson’s Draft Constitution (1776) and Thurgood Marshall’s Bicentennial Speech (1987). ENGAGE asked whether the "Three-Fifths Compromise" made the Constitution a pro-slavery document.

This content is provided to you freely by Equity Press.

Access it online or download it at https://equitypress.org/democracy/convention.