The convention worked in secrecy, which enabled the men to freely explore alternatives without fear that their honest opinions would come back to haunt them. The Virginia delegation first laid out a fifteen-point plan that repudiated the principle of a confederation of states. Largely the work of Madison, the Virginia Plan set out a three-branch government composed of a two-chamber legislature, a powerful executive, and a judiciary. It practically eliminated the voices of the smaller states by pegging representation in both houses of the congress to population. The theory was that government operated directly on people, not on states. Among the breathtaking powers assigned to the congress were the rights to veto state legislation and to coerce states militarily to obey national laws. To prevent the congress from having absolute power, the executive and judiciary could jointly veto its actions.

In mid-June, delegates from New Jersey, Connecticut, Delaware, and New Hampshire—all small states—unveiled an alternative proposal. The New Jersey Plan, as it was called, maintained the existing single-house congress of the Articles of Confederation in which each state had one vote. Acknowledging the need for an executive, it created a plural presidency to be shared by three men elected by the congress from among its membership. Where it sharply departed from the existing government was in the sweeping powers it gave to the new congress: the right to tax, regulate trade, and use force on unruly state governments. In favoring national power over states’ rights, it aligned itself with the Virginia Plan. But the New Jersey Plan retained the confederation principle that the national government was to be an assembly of states, not of people.

For two weeks, delegates debated the two plans, focusing on the key issue of representation. The small-state delegates conceded that one house in a two-house legislature could be apportioned by population, but they would never agree that both houses could be. Madison was equally vehement about bypassing representation by state, which he viewed as the fundamental flaw in the Articles.

The debate seemed deadlocked, and for a while the convention was “on the verge of dissolution, scarce held together by the strength of a hair,” according to one delegate. Only in mid-July did the so-called Great Compromise break the stalemate and produce the basic structural features of the emerging United States Constitution. Proponents of the competing plans agreed on a bicameral legislature. Representation in the lower house, the House of Representatives, would be apportioned by population, and representation in the upper house, the Senate, would come from all the states equally, with each state represented by two independently voting senators.

Representation by population turned out to be an ambiguous concept once it was subjected to rigorous discussion. Who counted? Were slaves, for example, people or property? As people, they would add weight to the southern delegations in the House of Representatives, but as property they would add to the tax burdens of those states. What emerged was the compromise known as the three-fifths clause: All free persons plus “three-fifths of all other Persons” constituted the numerical base for the apportionment of representatives.

Using “all other Persons” as a substitute for “slaves” indicates the discomfort delegates felt in acknowledging in the Constitution the existence of slavery. The words slave and slavery appear nowhere in the document, but slavery figured in two places besides the three-fifths clause. Government power over trade regulation naturally included the slave trade, which the Constitution euphemistically described as “the Migration or Importation of such Persons as any of the States now shall think proper to admit.” Another provision contrived to guarantee the return of fugitive slaves using awkward, lawyer-like prose: “No person, held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour but shall be delivered up on Claim of the party to whom such Service or Labour may be due.” Although slavery was nowhere named, nonetheless it was recognized, protected, and thereby perpetuated by the U.S. Constitution.