The American Experiment (2026) s01e04 Episode Script

- [man] You won the popular vote…
- [Hillary Clinton] I did. [laughs]
- Yes, I remember that every day.
- [man chuckles]
[tense music building]
[reporter 1] Hillary Clinton received
65.7 million votes,
and Donald Trump received 62.9 million.
So how is he president?
The Constitution sets up a system
called the Electoral College.
The winning presidential candidate,
in this case, Donald Trump,
has to have a majority,
or 270 electoral votes.
Trump actually has 306 to Clinton's 232.
I remember listening to commentators
from around the world.
A political scientist from France says,
"We don't understand this."
You know, "In our country,
the person who gets the most votes wins."
[reporter 2] Donald Trump won the election
without the popular vote
something that only happened
four times before.
[Clinton] We've had,
you know, other incidents,
but mine was probably the clearest case
because the margin was significant.
[music continues]
It's a very bizarre feeling
to know that nearly
three million more people
voted for you,
and a relic of compromises
from the Constitutional Convention
are going to prevent you
from becoming president.
[reporter 3] What were these guys thinking
when they put together
this constitutional provision?
The Electoral College
is one of the most mysterious
and peculiar parts of the Constitution.
It doesn't really quite work
the way the framers imagined.
[Jasanoff] There's all kinds of ways
in which America's
own governing institutions
just do not suit
the country that we live in now.
[music fades]
[dramatic music playing]
[Ellis] The American founding
is a misperception.
There are two foundings.
One, when we declare and win independence.
[shouting]
And the other when we declare nationhood.
That's the Constitutional Convention.
[Berkin] The morning after the revolution,
you discover there are problems
that you hadn't anticipated.
We owed money to France,
to Spain, to the Netherlands,
to the army,
which had almost mutinied
before it was disbanded
because the soldiers weren't being paid.
[Nichols] The Americans
won the revolution,
which means they were now able
to squabble with each other.
- [gunshots]
- [shouting]
America is a weak collection of states
in a world of powerful empires.
And it simply isn't going to be able
to last much longer.
[Levin] It's easy for us now to think
that the war was over,
they created the nation.
That is not how they felt.
The sense that Americans had in 1787,
ten years into independence,
was, "This thing is not working."
They were surrounded
by these European powers
who were like sharks
circling a bleeding man.
So many questions remain.
What do we do now?
[Duval] Maybe tearing down the old system
was the easy part.
Maybe separating from Britain
was the easy part.
The hard part,
how do you build a government
that can hold this crazy country together?
What gets put in the space
of where the empire was?
What kind of country will be created?
Will a country be created?
Can it hang together?
It's not gonna be a monarchy,
so what will it be?
What's the meaning of America?
What are we striving for?
[Bilder] Could a government based
on the people without a king survive?
Or was this just a temporary experiment,
a fluke of history?
[Berkin] By 1787,
there were a group of men who recognized
that the country was about to fall apart.
And what did they do?
The short answer is that three men decide
to stage a coup d'état.
These men are James Madison,
Alexander Hamilton, and John Jay.
And they recruit
a fourth all-important person,
and that is George Washington.
[music fades]
Washington does not want to do this.
He believes he's retired.
- [birds chirping]
- He's 55 years old.
He believes his best days are behind him.
[gentle music playing]
Madison is the one
who's really putting the pressure on him.
[Klarman] If you look at
what Madison is saying to Washington
in their private letters,
it's pretty clear they think the Union
is on the verge of falling apart.
[music becomes dramatic]
[Ellis] Eventually,
Washington agrees to come.
[Coe] They decide to have
an actual Constitutional Convention.
They'll go back to Philadelphia.
[Berkin] They went
because they were scared.
They were scared
that the country that had only been
in existence a few years
was going to vanish.
The experiment is in trouble.
[music intensifies]
[Treanor] The Constitutional Convention
takes place
at Independence Hall in Philadelphia.
And so they're coming back
to a place that is really sacred.
- There's a lot of street noise.
- [horse whinnies]
And they're right next to the jail.
And so there's noise from the jail.
[distant shouting]
It's a very busy place.
There is a lot of speculation
about what's going on.
[woman 1] The convention opens
the great field of political speculation.
There seems to be at present
an astonishing variety in the opinion
even of respectable men.
[woman 2] The eyes of friends and enemies
of all Europe,
nay more, of the whole world
are upon the United States.
[Rasmussen] From the beginning,
the founders saw themselves
as engaged in an experiment.
An experiment designed to show
the viability of Republican government
after thousands of years of failure.
It had never really worked
on a large scale.
One of the foremost fears
in the founding generation,
which they got
from looking back at the past,
ancient Rome,
Ancient Greece,
was demagogues.
[music intensifies]
[Hamilton] Of those men who have
overturned the liberties of republics,
the greatest number
have begun their career
by paying an obsequious court
to the people,
commencing demagogues and ending tyrants.
[Freeman] Over and over again,
they talk about the threat
of demagogues in a republic.
Why? Because republics are grounded
on public opinion.
And what demagogues do is they say
whatever it takes to get power.
[intense music continues]
And sway the public.
And the public can readily be swayed.
And then once they have power,
they do whatever they want to do
to serve themselves.
[Cornell] It's all about the demagogue
who exploits
the resentments of the masses,
uses that to further his agenda.
And the next thing you know, it's tyranny.
So all the delegates are mindful
that you have to be very careful
about ceding power to government
because tyranny is a constant danger.
Corruption is a problem.
Everyone is potentially corruptible.
- [music fades]
- [voices murmuring]
[gentle music building]
[Rosen] There are 55 delegates
at the Constitutional Convention.
So who are the main characters?
George Washington and James Madison
in the front of the room,
one of the tallest
and one of the smallest delegates.
In the back of the room
are two Virginians,
George Mason and Edmund Randolph.
Mason, such a large figure,
he wrote
the Virginia Declaration of Rights,
which Jefferson had by his side
when he wrote
the Declaration of Independence.
Randolph, considered
one of the great lawyers of America,
although Thomas Jefferson
calls him a perfect chameleon
and says he's always
shifting his position.
In addition to Virginia,
the next most important delegation
is from Pennsylvania.
So who's in Pennsylvania?
Well, first, Benjamin Franklin,
the oldest delegate.
He was no longer
at the peak of his career.
[Rasmussen] He was almost
crippled by gout.
When you read through the notes,
he's sometimes treated almost
kind of the crazy uncle in the room.
Next to Franklin is Gouverneur Morris.
He's the most important of the founders
that very few people have ever heard of.
[Rosen] Morris speaks more than anybody
at the Constitutional Convention.
He is a remarkable wordsmith.
[Rasmussen] And he may have been
the most colorful man in North America.
[music building]
He was a peg-legged ladies' man
with a really wicked sense of humor.
[Rosen] He's a serial philanderer.
He has endless numbers of affairs.
[Rasmussen] He had his leg amputated at 28
as the result of a bad carriage accident,
although there were rumors
following him throughout life
that he'd shattered the leg
jumping out a bedroom window
to escape the wrath
of an ill-timed husband.
[Rosen] Next to Gouverneur Morris
is James Wilson,
who is the great apostle
of popular sovereignty.
It's his idea that we,
the people in America,
have the sovereign power,
not the king, as in Britain,
or not the king in Parliament,
but the people of the United States.
[Treanor] But Wilson, as a lawyer,
defended loyalists.
He is widely hated.
And the irony of Wilson is
that he's the most democratic
of anybody at the convention.
And yet so many people think he's elitist,
and they really hate him
in a most vicious way.
[music continues]
Alexander Hamilton was
one of only three delegates
from New York State.
[Freeman] Hamilton was
a loud and leading nationalist,
wanting a strong government.
But his two counterparts are not excited
about a stronger national government.
And his state has one vote.
So he's essentially outvoted.
You've got to feel bad for the guy.
[music surges, fades]
[Treanor] Eventually, 12 of the states
are represented there.
Rhode Island chose not to send delegates.
The most notable missing delegates
at the Constitutional Convention
were John Adams and Thomas Jefferson.
Thomas Jefferson was the drafter
of the Declaration of Independence,
but he was
on a diplomatic mission in France.
John Adams, who had written
the Massachusetts Constitution of 1780,
was stationed in England.
George Washington
at the Constitutional Convention
is a great question and an enigma
in many ways.
[gentle music playing]
[Coe] He doesn't want to get involved.
He's not an attorney. He's not a lawyer.
But he understands
his presence will mean something.
[Bradburn] He's nominated
to be the president of the convention.
[Coe] Fine, he'll do it.
So he sits in a chair on a platform
elevated above everyone else.
And he's pretty quiet
throughout the Constitutional Convention.
[dramatic music playing]
[Chernow] People trusted
George Washington with power
because he's never seemed to be
grasping at power.
[Levin] He made himself a kind of
symbolic figure at the convention.
He took himself out of most of the debates
and very rarely spoke up.
[music fades]
- [bells tolling]
- [hooves clacking]
[Cornell] Delegates want to have
a very lively discussion,
and they are mindful
that if things are taken out of context,
if things leak prematurely,
it could kill the convention.
[Clinton] Trust is the glue
that holds democracies together.
Principled compromise
is the necessary approach
to cooling the passions.
Okay, I hear you.
You're passionate about this.
You're passionate about that.
Can we make a little bit of progress
toward common ground?
[gentle music building]
[Bradburn] So they do impose
a pretty strict rule of secrecy.
[Berkin] Nevertheless,
James Madison starts taking notes
on what everybody is saying.
[music intensifies]
The curiosity I had felt
during my researches into the history
of the most distinguished confederacies
determined me
to preserve as far as I could
an exact account
of what might pass in the convention.
[Berkin] The way we know what happened
day to day at the convention
was from Madison's notes.
But they were not made public
for a long time.
[music continues]
[Freeman] James Madison was scholarly,
and he prepared
for the Constitutional Convention
in part by looking
at confederations over time
and which worked, which didn't work.
He wants a stronger national government.
[Philbrick] James Madison gets
the Virginia delegates to show up early
so they can coordinate around a plan.
[Feldman] And it came to be called
the Virginia Plan.
Because Madison was a good politician
and not a great public speaker,
he gave the plan to Edmund Randolph,
the governor of Virginia,
who was a very public politician.
[Klarman] And on the first day
of substantive debates at the convention,
Edmund Randolph introduces
the Virginia Plan.
The Virginia Plan is nationalist,
meaning shifting power from the state
and local level to the national level.
[Bradburn] It imagined
a three-part government
with legislature,
an executive,
and a judiciary.
The framers believe
that power should be separated,
and they believe that partly
because they're influenced by Montesquieu.
[Rasmussen] The French philosopher
Montesquieu
was the first thinker to separate
the powers into the three branches
that we know and love,
legislative, executive, judicial.
Constant experience shows us
that every man invested with power
is apt to abuse it
and to carry his authority
as far as it will go.
To prevent this abuse,
it is necessary
from the very nature of things
that power should be a check to power.
[Rasmussen] The point behind separating
powers into the three branches
and instituting checks and balances
among those branches was to ensure
that each branch had an effective way
of checking any missteps or wrongdoing
by the other branches.
[music fades]
[eerie music building]
[Berkin] All of these men
feared the rise of tyranny.
Checks and balances were no joke.
They were designed to give people power
or branches of government power
and then hedge it around in some way
so that they couldn't have absolute power.
[Cruz] Sometimes people talk
about gridlock.
Gridlock is actually…
It's a feature, not a bug.
It is by design.
Our government was not designed
to be fast and efficient
because fast and efficient means
that a tyrant can use it quickly
against the people.
Madison said,
"Ambition will counter ambition."
He assumed the legislative branch,
the executive branch,
and the judicial branch would check
the other branches' ambitions.
[voices murmuring softly]
[Feldman] If you showed up
to the Philadelphia Convention,
you could be forgiven for thinking
that you were maybe just there
to amend the Articles of Confederation.
[Freeman] When the convention begins,
they do not have a mandate
to write a new form of government at all.
The Constitutional Convention is supposed
to revise the Articles of Confederation.
[Feldman] But the Virginia Plan had
what they call an agenda setting effect.
And so everyone else at the convention
was immediately reacting to that plan.
Once it was on the table,
the message was clear to all the delegates
that they were not just going
to tinker with what existed.
They were going to start something new.
[upbeat music playing]
What are the powers of the government
that you're creating?
What can it do?
These are the fundamental questions
that would occupy them
for the next several months.
[Levin] The American president
is the most creative product
of the convention.
It was truly new.
There had been courts forever.
There had been legislatures for centuries.
There had never really been
an executive who is not a king
in a nation with a powerful legislature.
The framers were worried
that you'd have an executive
who behaves like a king.
And so they wanted
to put limitations in place.
[Feldman] The debate about the executive
in the convention
was between two extreme positions.
Randolph and some of the Virginians
initially did not want
a super powerful president.
Edmund Randolph thought
there should be three people.
He wanted the executive to be modeled
on the Roman triumvirate.
I strenuously oppose a unity
in the executive magistracy.
I regard it as the fetus of monarchy.
I cannot see why the great requisites
for the executive department,
vigor, despatch, and responsibility,
could not be found in three men
as well as in one man.
But then they said, "Wait a minute.
You know what's gonna happen?"
- "They're going to argue."
- [music stops]
[Feldman] On the other side
were figures like Gouverneur Morris,
James Wilson and Alexander Hamilton,
who actually wanted a president
to be at least as powerful
and maybe even more powerful
than the King of England.
And they thought it was a good idea
to have a more powerful executive
to enable the country
to fight wars effectively
and to enable the country
to become a global empire.
[Levin] One thing we really have
to recognize about the presidency
as it was created by the convention
was that they were literally looking
at George Washington.
[upbeat music playing]
He was sitting there in the big chair,
and the presidency
was tailored to him like a suit.
[Bilder] They're comfortable
with Washington.
But once you move beyond Washington,
the other people whose names are famous,
they don't trust.
[Levin] Washington wouldn't
be around forever.
And so they tried to design
the structure of the executive
such that there would be
checks on his power.
[Klarman] They have these debates,
and they're wrapped up together.
Who should choose the president?
What should the president's powers be?
How can the president
be removed from office?
[Levin] Something they spent
the most time on
was how we're gonna elect this individual.
[Feldman] Almost no one
in Philadelphia in 1787
wanted the president
to be directly elected
by all of the people.
[Levin] Most of the delegates
found this idea
totally ridiculous and laughable.
[Feldman] They weren't sufficiently
trusting of the general public
to think they should go to that
for the election of a president.
This was really a practical,
technical challenge.
[Berkin] The average farm family
probably never left where they were born.
They certainly didn't have
a newspaper in town.
They didn't have Fox or MSNBC.
[drums tapping]
The candidates
would have to go from state to state.
It would take, I don't know,
five or six years to meet every farmer
and introduce yourself.
There's also a lot of concern
about a person
who would be popularly elected
and come into power
and never relinquish it.
[Rosen] And Hamilton later says
if there's a Caesar
who's gonna rise in America,
it might be by a demagogue
taking advantage of commotion
and riding in on horseback
and calling off elections
and installing himself as a dictator.
When a man unprincipled in private life,
desperate in his fortune,
bold in his temper,
possessed of considerable talents,
having the advantage of military habits,
despotic in his ordinary demeanor,
known to have scoffed in private
at the principles of liberty.
When such a man is seen to mount
the hobbyhorse of popularity,
to flatter and fall in
with all the nonsense
of the zealots of the day,
it may justly be suspected
that his object is
to throw things into confusion,
that he may ride the storm
and direct the whirlwind.
[music fades]
[Clinton] Alexander Hamilton
was one of the people
who warned consistently
about demagogic leaders
who would get into power,
never want to leave,
use the power of the office
to enrich themselves,
use it to promote their own agendas.
They had certain expectations,
even more than powers, in my view,
about how an executive
would faithfully implement the law,
protect and defend the Constitution.
It was the model
that the founders were trying to put forth
and surrounding that model
with all of the warnings
from Hamilton and others
about the alternative.
[Cruz] The framers were not naive.
They understood that people seek power,
that people are self-interested.
They had no delusions
that politicians would be
these self-serving saints.
[Paul] Our founders were conscious
of two sort of tyrannies that they feared,
tyranny of a dictator or a king,
but also tyranny of the majority.
They were afraid of rule by one,
but they were also afraid of rule by many.
They wanted to be self-ruled.
[Rosen] Hamilton proposes
a president elected for life
on the idea this would make him
above corruption.
He can have the public interest
rather than his interest
and won't be tempted to play politics.
[Chernow] But yet to most people,
then and now,
it sounded suspiciously
like a king. [chuckles]
[Rosen] And it's a total flop
'cause it's so radical.
[men shouting]
[Bilder] This is a government
where they've decided
it's about the people, not the king.
And yet most of them think
having popular election for the president
is a terrible idea.
But if Congress elects the president,
they're convinced that Congress
will work deals with the president
to get basically what they want,
personally and politically.
[eerie music playing]
It's an incredibly tricky problem,
and they can't figure it out.
[Berkin] They were deadlocked,
and they said, "Let's move on."
"We'll come back to this later."
"We'll come back
to how to elect the president later."
[Pence] The order of the Constitution
was important to the founding generation.
Article II created the executive branch.
Article I was the legislative branch.
The Congress was always a place
where the popular will
of the American people
was meant to be expressed.
[music continues]
These men believed that Congress
was the heart and soul of the government.
So the president's job
would be to administer the laws
that the Congress passed.
[Cruz] In Article I, Section 8,
they enumerated the powers of Congress.
I memorized a shortened version of it.
TCC, NCC, PCC, PAWN, MOMMA, WREN.
Taxes, credit, commerce,
naturalization, coinage, counterfeiting,
post office, copyright, courts,
piracy, army, war, navy,
militia, money for militia,
Washington DC, rules,
and necessary and proper.
[Rosen] The image they had of Congress
was a deliberative body of serious people,
of American elites.
[music continues]
But how do you create a system
that allows people to have representation?
[Feldman] The single
most contentious issue
at the Constitutional Convention
in Philadelphia was
how many representatives
each state would get.
[upbeat music playing]
The Virginia Plan proposed
that there would be
two houses of the legislature,
and both would choose their members
based on population.
So big states would get
more representatives,
and big states would also get
more senators.
The legislature ought to be
the most exact transcript
of the whole society.
[Feldman] This would give
tremendous power to the big states,
and take away an enormous amount of power
from the small states.
[Berkin] James Madison
was absolutely adamant
on proportional representation,
that it'd be based on population.
[Lessig] He thought the only way
that a representative democracy,
like, functions well,
is by advancing ideas
that are attractive
to the majority of the people.
[Chernow] Now, Virginia was
the most populous state at the time,
so they obviously had an interest
in proportional representation.
[Lessig] Virginia is ten times the size
of tiny Delaware.
Will Virginia have ten times
the number of representatives?
[Chernow] This alarmed the smaller states,
who countered with what became known
as the New Jersey Plan.
And the New Jersey Plan,
instead of having
two legislative chambers, would have one.
And guess what?
Each state would have one vote.
[Clinton] The states wanted to be sure
they had some power
versus the federal government.
They didn't want to wake up and find
that the federal government
was imposing on them
taxes or laws and regulations
that they found
inimical to their own interests.
And so there was
a lot of tension between the states.
- [music stops]
- [voices murmuring]
[Feldman] The small states
essentially told
the representatives of the large states,
"You have two choices."
"Either you're going to agree
to give us equal representation,
regardless of our size,
the same way we had it
in the Articles of Confederation,
or we're out of here."
"You're not going to get
a constitution at all."
[gentle music playing]
New Jersey will never confederate
on the plan before the committee.
She would be swallowed up.
I had rather submitted to a monarch,
to a despot, than to such a fate.
The large states believed
this would give a disproportionate power
to the smaller states.
It would be in the power then
of less than one third
to overrule two thirds.
The arguments are going on,
and they're growing more intense.
[several voices shouting]
[man] They insist that although
the three great states form
nearly a majority of the people
of America,
they never will hurt or injure
the lesser states.
I do not, gentlemen, trust you.
It was not out of the question
for the states
to simply break up their union.
If a separation must take place,
it could never happen on better grounds.
[music intensifies]
[Klarman] So tempers were clearly rising.
I think there are times they're not far
from being at blows with one another.
The large states
dare not dissolve the confederation.
If they do, the small ones will find
some foreign ally
of more honor and good faith
who will take them by the hand
and do them justice.
This country must be united.
If persuasion does not unite it,
the sword will.
[Klarman] And that's when the convention
almost fell apart.
- [music fades]
- [crickets chirping]
[Berkin] Philadelphia summers
are hot and humid.
The first thing these men did
when Washington gaveled,
you know, "We're done for the day,"
was rush to the tavern and drink.
[men cheering]
I can guarantee you
that an enormous amount of alcohol
was consumed.
An enormous amount of alcohol
was consumed by everybody in America
at the time.
- [upbeat music playing]
- [men shout]
People kept pestering them,
"What's happening? What's going on?"
"What are you doing?
You can tell me, I'm your wife."
"You can tell me, I'm your father."
Mrs. House's, where I am, is very crowded,
and the room I am presently in
so small as not to admit of a second bed.
[upbeat music continues]
[Berkin] So it was not a happy experience.
[Klarman] They're all in the same room,
and it's stifling.
As you may know, in the 18th century,
people didn't take showers very often.
[Rosen] And you're basically trapped
with the same guys
until you reach some sort of agreement.
[Klarman] At this point,
the small states insisted,
you know,
"Our states will never ratify a document
that deprives them
of their equal representation."
[music fades]
The small staters weren't backing down.
Threats ended up
wearing down the large staters,
or at least some of them.
And a compromise actually came
from some Connecticut delegates.
[Bradburn] Roger Sherman
and Oliver Ellsworth
are clearly key players in what's called
the Connecticut Compromise
or the Great Compromise.
[Rosen] The Virginia Plan wants
representation by population
in both houses of Congress.
The New Jersey Plan
wants representation by the states.
And the Connecticut Compromise,
like Goldilocks, splits the difference
and has representation
by population in the House
and by states in the Senate.
[dramatic music playing]
In the House, representation
is determined by a census every ten years.
And as a result,
the number of total representatives
changes based on population.
In the Senate,
every state gets two representatives.
But the Senate itself,
actually at the American founding,
was not popularly elected.
The states appointed members
to the United States Senate.
It really wasn't until 1913
that the Constitution was amended
to allow for the popular election
of senators.
[Klarman] The convention very narrowly
approved the Connecticut Compromise.
And at the end of the day,
it's mostly a power play.
And the small states
play a good game of poker.
And the status quo advantages them.
[Feldman] The delegates
from the big states
ultimately chose compromise.
And that compromise was very remarkable.
Until that moment,
they had fully expected to have
a democratic constitution
where power lay with the people.
What they got
was a constitutional republic
in which the small states,
through the Senate,
could exercise
enormous disproportionate influence.
[Lessig] This was
not just a temporary compromise.
It's one of the only clauses
in the Constitution
that the amendment clause, Article V,
expressly says you can't change.
[music fades]
[Klarman] We still have a U.S. Senate
where Wyoming with 550,000 people
gets the same two senators as California
with 39 million people.
That's not fair.
But our founders
could never possibly imagine
a state with 40 million people
versus 1 million or fewer.
[Paul] They thought that the idea
that Wyoming would have two senators
was a check and a balance
on the force of democracy.
How would Wyoming
ever have its own personality or survive
if they had no senators and had no vote?
They'd be subsumed into California,
God forbid.
And so the only way these small states
are able to have any personalities
is because of the design of the Senate.
[soft orchestral music building]
At the Philadelphia Convention,
lots of folks thought
that the big debate was going to be
between big states and small states.
And it was.
But the delegates had come to see
that the division
that was more significant in the long run
was going to be
between free states and slave states.
[Rasmussen] Slavery was the thousand-pound
elephant in the room
because they know it's a dealbreaker.
[Clinton] Slavery was an original sin
of the formation of our nation.
Slavery was at the core
of some of the most difficult,
contentious discussions
within the Constitutional Convention.
There were abolitionists
and there were slave-owning members.
I never will concur
in upholding domestic slavery.
It is a nefarious institution.
Gouverneur Morris was, without question,
the staunchest opponent of slavery
at the convention.
[Morris] It is the curse of heaven
on the states where it prevails.
[Rasmussen] He's a Northerner
from a slave-holding family.
His father enslaved several dozen people
when he was a child.
But he was clear-sighted enough
about slavery's evils.
He opposed it way back
at the New York State
Constitutional Convention in 1777
when he's only 25 years old.
[Levin] A lot of the delegates
to the convention,
even a couple of the Southern delegates,
were essentially abolitionists
and thought that allowing the nation
to take form
around the institution of slavery
was a huge mistake.
[Bilder] They also knew
how hypocritical it was
to have fought a war in which you claimed
the whole point was liberty and equality
and then deny it to others.
[soft music continues]
[Levin] But they decided in the end
that if they didn't put
that question to the side,
they wouldn't have a constitution.
[Rasmussen] The delegates
from the South would not have signed on
to a constitution
that didn't protect slavery in some way.
[Cobb] Slavery is much more important
to states like Georgia,
South Carolina, and Virginia
than it is to states like New Jersey,
New York, and Massachusetts.
And the presumption is
that in order to hold
this fragile alliance
of 13 states together,
you are going to have
to concede to the interests
of the more slavery-oriented economies.
Not everybody liked it,
but they knew it was essential
to the economic underpinnings
of the country.
[Feldman] So the most famous conflict
between the free states
and the slave states at the convention
was the conflict about
how to count enslaved persons
when they decided how many representatives
each state would get.
The Southern states' position was,
"We want all slaves to be counted
in our population
for purposes of representation."
"We're not going to let them vote."
"We're not going to let them be free,
but they count."
The labor of a slave in South Carolina
is as productive and valuable
as that of a free man in Massachusetts.
Consequently, an equal representation
ought to be allowed for them.
The anti-slavery Northerners
pushed back against that.
Upon what principle is it that the slaves
shall be computed in the representation?
Are they men?
Then make them citizens and let them vote.
Are they property?
Why then is no other property included?
[soft music continues]
[Feldman] The Northern states also talked
about how you guys are going to have
disproportionate power
because we're counting your slaves,
and there were a lot of slaves,
but those slaves
are never going to vote at all.
The result was
the most famous and shameful compromise
of the Constitutional Convention,
the three-fifths compromise.
[Levin] It was James Wilson
of Pennsylvania
and Charles Pinckney of South Carolina
who proposed the three-fifths clause.
Three-fifths, or 60%,
of the enslaved population
will be counted in the census
as belonging to the state
where they reside.
What that effectively does
is use the bodies of enslaved people
to subsidize the political authority
of the people who are enslaving them,
but they do want them
to be counted as part of the society
when it comes to politics.
What's not being said here
is that the contradiction is
not whether enslaved people should count
or whether they should not count,
but whether you can have a democracy
and have enslaved people simultaneously.
That is the debate that gets sidestepped
in order to come up with the half measure,
or we should say the 60% measure,
of the three-fifths compromise.
People who were excluded
from participating in the politics
of this era
knew they were excluded
and they were angry about it.
- [birds singing]
- [music continues]
[Lepore] When we talk about the people,
we have to distinguish
people who are being counted
for the purposes
of how many representatives you get
and people who are themselves
allowed to elect those representatives.
Enslaved people won't vote
and women won't vote.
[Good] The only place
where women can vote is in New Jersey
in a brief period of time.
Some women who were
either widowed or single
and owned property in New Jersey
could vote.
[Lepore] But eventually
New Jersey passes a law
that takes the new language
of white male voters
and imposes it
on the New Jersey voting population.
[Good] We know that from the notes
we have of the Constitutional Convention,
they never talk about women's rights.
The idea was if a man is voting
on behalf of his whole household,
the woman should be
in conversation with him about politics,
but his vote is supposed to represent
the entire household.
[tense music playing]
[Miller] The founding fathers
of the Constitution
saw tribal peoples
as citizens of their own government.
They were not state or federal citizens,
so they thought it made perfect sense
not to count that Indian person.
[Hoskin] We're not a party
to the Constitution.
Tribes are mentioned in the context
of the ability of the federal government
to regulate the relationship
between tribes in the United States.
And yet we're physically
within the United States.
We're dealing with people
that want our land, want our resources,
people that want to go to war.
A federal government
that may want to use its army
to march us across the United States,
which it did.
And so we may not be part
of the Constitution,
but the Constitution is one of the most
consequential instruments
in all of Cherokee history.
[music fades]
[pensive music playing]
[Rasmussen] The other main debate
around slavery during the convention
was over the continuance
of the overseas slave trade.
[Klarman] South Carolina
and Georgia would like
to keep importing slaves from Africa.
The North doesn't want
the slave trade to continue,
partly because the slave trade
is even more reprehensible than slavery.
You're kidnapping people,
tearing away from their families.
A large percentage
are going to die in the Atlantic passage.
I consider it as inadmissible
on every principle of honor and safety
that the importation of slaves
should be authorized to the states
by the Constitution.
And this is a huge division over slavery,
leading to a big clash.
If the convention thinks
that North Carolina, South Carolina,
and Georgia will ever agree to the plan,
unless their rights to import slaves
be untouched,
the expectation is vain.
[Feldman] In another
compromise arrangement,
the Constitution
included a provision that said
that for 20 years after ratification,
Congress would not be able
to abolish the slave trade.
After 20 years,
Congress would be able to do it.
And the reason that was sufficient
from the standpoint of the Southerners,
in my view,
was that the Southerners were confident
that if they could import enough slaves
in the intervening 20 years,
that they can continue relying totally
on an internal supply of slaves.
That is the natural reproduction
of enslaved people.
It's really dark.
[voices murmuring]
[Holton] In return for that,
the North got the power through Congress
to impose laws on trade
by simple majority vote.
The South was afraid of that
because they were afraid
that the North would make everything
cost more in the South.
[Rosen] In a really complicated deal,
basically,
South Carolina agrees
to support the New England position
on congressional power over trade
in exchange for protecting
the international slave trade.
[Holton] That was
the so-called dirty compromise.
[somber music playing]
[Klarman] The last important provision
dealing with slavery
is the Fugitive Slave Clause.
[Cobb] In very sanitized language,
it holds that individuals who are held
in service in one part of the country
could not escape that service
by leaving that part of the country.
In that language,
you would almost not know
that you were talking about human beings
who were being bred, whipped, raped,
abused, bought, sold,
and trafficked.
[Feldman] This clause also forced
the Northern states,
the ones that were
already abolishing slavery,
to acknowledge
the constitutional lawfulness
of the practice of slavery itself.
[Klarman] The framers made
a bargain over slavery,
and they didn't think there was a choice.
[somber music continues]
[Levin] They decided
not to answer the question
of whether this would be
a slave nation or a free nation,
and to allow that question
to be answered differently
in different parts of the country.
Some of the Virginian delegates
to the convention,
like James Madison and George Washington,
deep down, they knew
that slavery was wrong.
What Madison and Washington
were able to tell themselves,
to salve their conscience,
was that slavery was
an old-fashioned anachronism,
and it would eventually end.
And so they were willing to accept
the various compromises on slavery
in the Constitution,
telling themselves that the United States
would not forever be a slave republic.
[Treanor] Morris, who is the strongest
opponent of slavery at the convention,
is horrified.
The inhabitant
of Georgia and South Carolina
who goes to the coast of Africa,
and in the defiance
of the most sacred laws of humanity
tears away his fellow creatures
from his dearest connections
and damns them to the most cruel bondage,
shall have more votes in the government
instituted for the protection
of the rights of mankind
than the citizen of Pennsylvania
or New Jersey
who views with laudable horror
so nefarious a practice.
[somber music continues]
[Bunch] The Constitutional Convention
makes slavery central
to the American experience.
So in many ways,
it really makes clear
that this is going to be a major divide
in the United States for years to come.
[upbeat music playing]
Even when you know that that compromise
was necessary for the very edifice
to come into existence at all,
that doesn't really make
the slavery compromises easier to swallow.
The compromise may have made union
possible in a sense,
but it also made it
fundamentally unstable.
[Cobb] All the solutions are temporary.
Even the permanent solutions
are temporary.
And to varying degrees,
people are aware of that at the time.
It's hard to believe
that this is going to hold.
[music fades]
[Rosen] When you look at the Convention,
the big focus is Congress.
Second focus, the executive.
The judiciary, really, the least.
[pensive music playing]
The Constitution, which I have a copy.
There it is.
Will this work or will it not?
They're facing this question.
We have balanced powers
between a Congress over here,
which legislates,
and a president
and the executive branch under him,
which will execute.
But how do we know
they're not going to misinterpret
the words here?
We need some judges to say
when they've gone too far.
Because this sets boundaries.
They wanted an independent judiciary
separate and apart from the executive.
So they were looking for the popular will
to be expressed, implemented, and judged.
[pensive music continues]
Article III of the Constitution,
of the three major articles
that set up the different branches
of the U.S. government,
it is the shortest.
[Bilder] They actually just say
one Supreme Court.
It doesn't tell us
how many people will be on that court.
In fact, that court
originally is six justices.
[Campos] There's no time limit
with respect to judges.
The only limitation with respect
to their term
is whether they are acting
in good behavior or not,
which has been interpreted
as lifetime appointments.
The original idea
about lifetime appointments was
to maintain the independence
of the judiciary.
Over time, as the parties
have become more polarized,
they've taken advantage
of lifetime appointments
to try to appoint judges very young
and hope for very long tenures
in terms of partisan appointments.
It creates
these kind of strange situations
where you can really lock in
ideological preferences
for a very long time.
[man] Today, neither the president
nor the Congress
really has the ambition to take on
the Supreme Court
in its claims
that it gets to have the last word
on the Constitution.
That would have been foreign
to Washington,
Jefferson, Jackson, and Lincoln.
They all claim that presidents
and congresses had the right
to interpret the Constitution
on the same par as the Supreme Court.
[pensive music continues]
[Freeman] With three branches
of government finally sorted,
everyone can see
how power is going to be distributed.
[Feldman] But to a certain degree,
the framers left unresolved
just how powerful the president would be.
[Levin] They needed a figure who would be
elevated enough to be a world player,
but also would be accountable
to the public and to the laws
that Congress passed.
…matter of national competition.
The founders thought
people should have a say
in everything about how they're governed,
but most importantly,
on issues of war and peace,
life and death.
[Chervinsky] Under a monarchy,
the king is responsible for declaring war.
They rejected that system.
So they split the military powers.
They gave Congress
the sole power to declare war,
but they put the president in charge of it
as commander in chief.
[tense music playing]
They agreed
that no president could start a war
without permission of Congress.
Every one of them said that.
It's in the Constitution,
and yet war is routinely fought now
with an executive order.
In no part of the Constitution
is more wisdom to be found
than in the clause which confides
the question of war or peace
to the legislature
and not to the executive department.
The trust and the temptation
would be too great for any one man.
[jet engine roaring]
- [explosion]
- [machine gun rattles]
[explosion echoes]
[explosion and music fade]
[Feldman] One of the fears
that was explicitly voiced
at the convention
was what to do about a president
who decided to use
the power of the presidency
to undermine the Constitution
and the rule of law.
[tense music playing]
[Rasmussen] So they come up with
a fairly broad definition of impeachment.
The founders weren't very clear
on impeachment,
on what it would decide,
what was a high crime and misdemeanor.
[Feldman] Impeachment
ultimately turned out to be
extremely difficult ever
to operationalize in practice.
We've had impeachments
in the United States on four occasions,
but never the conviction of a president.
And only one president, Richard Nixon,
who was not yet impeached,
was about to be impeached,
has ever actually resigned
from the presidency under its threat.
[Levin] I think there is much less
of a protection against corruption
than they imagined there was.
[music fades]
[Bilder] By late August, they all want
to get home. They all want to be done.
Every article is again argued over
with as much earnestness
and obstinacy as before.
[Berkin] They'd been
away from their families.
They'd been away from their businesses,
their farms, their plantations.
[birds singing]
What they haven't settled,
they're going to settle by committee
in September.
And the most important thing they do
is they create the Electoral College.
[reporter] US voters went to the polls
and elected a president last month,
so the one with the most votes
wins, right?
- [cheering]
- Not quite.
I personally think the Electoral College
is an abomination… [laughs]
…for obvious reasons.
I know how disappointed you feel
because I feel it too.
And so do tens of millions of Americans
who invested
their hopes and dreams in this effort.
[Berkin] James Wilson
is sort of a shadowy figure to most.
I mean, if you ask 500 Americans,
they would never have heard of him.
He did the one thing that we wish
he hadn't done at the convention.
He came up with the Electoral College.
[pensive music playing]
[Lessig] The Electoral College
is a group of people
called together for one purpose,
to decide who's going to be president.
[Campos] You can think
of the Electoral College
as a compromise on top of a compromise
on top of a compromise.
[Klarman] Your number of electors
is your number of senators
plus your number of House members.
So Southerners will get
some slave representation
in the small states.
Because every state gets two senators,
it's going to do a little better
in the Electoral College
than they do in the House.
The founders themselves were not in love
with the Electoral College.
It was defective from the beginning.
We have a problem
that a minority of the population,
because of the structure
of the Electoral College,
in some cases,
over the objections of the majority,
is ruling the majority.
I'm one who finds virtue
in the Electoral College.
It's not just because
I come from a smaller state, Arizona,
that may benefit more
than a larger state like California.
It emphasizes our system of federalism.
We are not a direct democracy,
we're a representative democracy.
The states have considerable power.
The states run elections.
That is a good thing
to decentralize that kind of power.
[music fades]
[Berkin] James Madison always viewed
the Electoral College
as a stopgap measure.
That mode which was judged most expedient
was adopted.
Till experience should point out
one more eligible.
[Berkin] He always assumed
that ultimately someone would come up
with a better idea than that.
[voices murmuring softly]
Since they had voted randomly,
one thing after another,
in no particular order,
they gave it all to Gouverneur Morris
and say, "Here, Gouve."
They didn't call him that,
but I'm paraphrasing.
"Do something with this."
[somber piano music playing]
And he wrote the Constitution.
[Rasmussen] Morris wrote the Constitution
over three and a half days.
He did his work very quickly.
He took 23 sprawling articles
and pared it down
to a neat seven articles.
He changed or chose
a great deal of the wording
on his own initiative
in consequential ways.
[Treanor] The Fugitive Slave Clause
describes
enslaved people going back to the people
who justly owned them.
Gouverneur Morris,
the fiercest opponent of slavery
at the Constitutional Convention,
takes the word justly out.
And that is huge.
[Bilder] The final Constitution
does not ever include the word slave.
And Frederick Douglass in the 19th century
would make this
a large part of his argument
about why the Constitution
could be interpreted
to lean towards liberty.
[somber music continues]
[Feldman] In the final days
of the Constitutional Convention,
a couple of delegates became gadflies,
making various kinds of demands
for changes
that seemed significant to them.
George Mason spoke out repeatedly
in favor of the need of a bill of rights
that would protect individuals
against government overreach.
I wish the plan had been prefaced
with a bill of rights.
It would give great quiet to the people.
[Lessig] Any free society
has the right to free speech,
or any free society
has the right to assemble.
Any free society has due process right.
You can't have your property taken.
But it's not written down anywhere.
So how do you rely on it?
People would say,
"This is a government that's created
for the purpose of protecting rights,"
but didn't actually say anything
about protecting most rights.
[Feldman] The general feeling
in the convention was,
"We don't need a bill of rights."
"Because we haven't conferred
on the central government any powers
that would impinge on individual liberty."
The fundamental rights
were thought to be implied.
[music intensifies]
And so the Constitutional Convention
on September 17th adjourns
without what we come to know
as a bill of rights being part of it.
[music fades]
[Campos] By the time
the convention ended in September,
some delegates had already left.
[Rosen] There are three dissenters
who refused to sign the Constitution.
Elbridge Gerry of Massachusetts,
George Mason of Virginia,
and Edmund Randolph of Virginia.
They have different reasons
for refusing to sign.
But it's mostly
the lack of a bill of rights.
[somber music playing]
[Levin] Everybody else supports it.
And they sign it.
[Bilder] Benjamin Franklin gives
a great speech.
When you assemble a number of men
to have the advantage
of their joint wisdom,
you inevitably assemble with those men
all their prejudices, their passions,
their errors of opinion,
their local interests,
and their selfish views.
From such an assembly,
can a perfect production be expected?
It therefore astonishes me, sir,
to find this system approaching
so near to perfection as it does.
Thus, I consent, sir, to this Constitution
because I expect no better.
[Bilder] One of the other things
that Franklin says
is that he had looked
at the back of a chair
in Independence Hall.
[Levin] Franklin says,
"I've been looking during the convention
at the sun on the president's chair."
"And I've wondered, is it a rising sun
or is it a setting sun?"
- [somber music continues]
- [birds singing]
[Franklin] I have the happiness to know
that it is a rising and not a setting sun.
[Lepore] The thing is full of compromises.
I think we tend to exaggerate
how confident they are
that they quite got it right.
They have a tremendous
and well-earned anxiety
about how this all could go wrong.
[Bilder] Some of the people who do sign
give speeches saying
that they understand
this isn't a perfect document,
that not everybody agreed,
but they think
this is about as good a document
as they could give.
[Berkin] None of them envisioned
that it would go on for almost 250 years.
The Constitution is
the greatest legal document ever crafted.
[Rosen] The oldest national Constitution
still in operation,
based on the radical premise
that we the people
as a whole are sovereign,
not the king and not the legislature,
and that we parcel power out
to different parts of the government
in order to protect liberty.
And the proposition
that it's possible to create a government
based on the ideas of liberty, equality,
and government by consent
is the most inspiring experiment
in world history.
[Rasmussen] The initial preamble said,
"We the people of the states
of New Hampshire and Massachusetts
and on down the eastern seaboard."
Gouverneur Morris changed it to,
"We the people of the United States,"
and wrote the Constitution's
ringing statement of purpose.
[music intensifies]
We the people of the United States,
in order to form a more perfect union,
establish justice,
ensure domestic tranquility,
provide for the common defense,
promote the general welfare,
and secure the blessings of liberty
to ourselves and our posterity,
do ordain and establish this constitution.
[Pence] I was at the National Archives
not long ago,
and a lot of the words of the Constitution
under that dark glass in that dimmed room
are hard to read.
But there are three
that are not hard to read. [chuckles]
The top of the first page,
"We the people."
And those first three words
of the Constitution
would always define our nation.
[triumphant music playing]
[Berkin] The reason why we're so special
is because of "We the people."
- [cheering]
- [cars honking]
[woman] When the framers talked about
"We the people,"
"we the people" was
a small group of people
that they were really talking about.
There were so many other people
that were here
that weren't considered
part of the "People."
But to me,
that's the beauty of the document,
that it is aspirational.
We the people.
Representation does matter.
Our lived experiences,
our professional experiences,
add to the richness,
add to the better quality
of the government.
The Constitution's
a miraculous document in my view.
It's a remarkable document.
It reflects a diverse country
that wants to maintain that diversity,
but also a dynamic country
that wants to maintain that dynamism.
[Bilder] Elizabeth Willing Powel,
who was probably the most important
politically connected woman
in Philadelphia,
asks Franklin whether the delegates
have given the country
a republic or a monarchy.
And he famously says,
"A republic, if you can keep it."
[Al Gore] That really encapsulated
what many of them, I think, felt
from their writings that,
"Sure hope this works, and we've set it up
to the best of our ability."
"But it is still an experiment."
[triumphant music continues]
[music fades]
[Rosen] There clearly is some sense
that it's far from over.
[Treanor] Now it goes to the states
and the rule is
nine of them have to ratify
for the Constitution to go into effect.
[shouting]
And the passage of the Constitution
is very much in doubt.
[dramatic march playing]
[music fades]