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5 Harv. Negotiation L. Rev. 279
Harvard Negotiation Law Review
Spring 2000
Article
PROCEEDING TO A CONSTITUTION: A MULTI-PARTY NEGOTIATION ANALYSIS OF THE
CONSTITUTIONAL CONVENTION OF 1787
Dana Lanskyd1
Copyright (c) 2000 Harvard Negotiation Law Review; Dana Lansky
I. Introduction
[W]hen you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men,
all of 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 . . . to find this system [of government]
approaching so near to perfection as it does . . . . 1
Benjamin Franklin, on the last day of the Constitutional Convention of 1787 During the summer of 1787, fifty-five men
gathered together from various parts of the American confederation 2 to discuss the problems confronting their federal system
of government, and to try *280 to use their “joint wisdom”3 to formulate possible solutions to those problems. The creation
of a new constitution,4 or any particular centralized government,5 was not a foregone conclusion. Several factors favored the
Constitution’s Framers’ efforts to create a consensus for a stronger central government, including the admitted failings of the
Articles of Confederation under which they were then living, 6 and the distinguished characters of some of the Framers
themselves.7 However, many factors worked against the Framers, including concerns about their lack of the requisite
authority necessary to create a new system of government, as well as the fact that the Framers were, as Franklin noted, real
people with their “prejudices, their passions, their errors of opinion, their local interests, and their selfish views.”8
*281 The process through which the multiple parties in attendance at the Constitutional Convention of 1787 were able
successfully to negotiate the United States’ form of government is worthy of examination for at least two significant reasons:
first, to elucidate the impact of process on the formation of the United States’ Constitution; and second, to illustrate how
process can be used to evoke deliberation and creative joint problem-solving in complex, multi-party negotiation contexts
generally. While every multi-party negotiation requires context-particularized processes, negotiation tools are sometimes
transferable, and process concerns are often the same.
The Constitutional Convention is particularly well suited to a process-based analysis both because its end result--the United
States’ Constitution--matters, and because the process used to create it mattered. Without a process through which to discuss
their ideas, the Framers would not have been able reach any consensus, much less arrive at the particular agreement to which
they came. Although generally “group communication processes . . . have proven elusive and difficult to understand,”9 those
used during the Constitutional Convention are particularly accessible. Rich data exists about the Framers’ ideas on certain
process issues. During the debates, they discussed elements of group process while simultaneously using their own processes.
The Framers’ own experiences with process must have helped shape their comments about the kinds of processes they argued
should be incorporated into the new government.
The Convention is also interesting to examine because of the complexity and the interconnectedness of the negotiated issues.
Each element of the discussion provided opportunities for conflict and disagreement, while at the same time being closely
intertwined with other elements.10 Multi-party negotiations over complex issues are notoriously difficult; yet, with the help
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of brilliant process leaders like James Madison, Benjamin Franklin, and George Washington, the Framers were able to reach
a workable consensus. There is much to learn from the principles these great men used to manage their joint decision-making
process.
*282 The Framers consciously addressed the demands of their multi-party negotiation context in several ways. They began
by negotiating with each other about some of the roles different delegates would play and some of the process elements they
would use. In both areas, the Framers strove for creative ways to meet the challenges of their particular situation, and make
wise use of the skills and opportunities they had at hand. They chose process rules that would encourage them to share their
concerns openly, to listen to each other, and to feel comfortable learning from each other. They made their process flexible
enough to permit exploration of new ideas, reconsideration of old ideas, and experimentation with new combinations of
ideas. The Framers also took advantage of the process leadership strengths of those involved in the proceedings: George
Washington presided over the Convention and facilitated formal discussions; Benjamin Franklin unofficially assumed the
role of a process troubleshooter; and James Madison informally assumed the less neutral role of agenda setter. Together these
men, with the help (and sometimes hindrance)11 of others, worked to move the process along--package by package, and issue
by issue. When their work on the assembly floor could not productively move the deliberations toward a consensus, the
Framers turned contentious and complicated issues over to committees, comprised of the more moderate thinkers on the
particular issues under consideration. Those men were generally able to bring acceptable compromise solutions back to the
assembly floor, at which time the assembly process continued. Although much of what the Framers did worked well, their
process was at times complicated by the decision rules that they used, and by their failure to adequately and expeditiously
address their questionable authority to create a new constitution.
The Framers’ experiences provide a wealth of material for analyzing multi-party negotiations generally. Several of the
specific multi-party negotiation techniques they used are worth considering *283 for use in other negotiation situations. For
example, the Framers’ experiences illustrate how techniques such as task-oriented committees, deliberation-evoking
procedural rules, and option-packages can be used wisely to help build consensus. More importantly, however, the
Constitutional Convention demonstrates that procedural rules can be thoughtfully crafted to foster deliberation and creativity.
The Convention also illustrates that there are significant opportunities for process leadership by negotiation participants who
do not have formal leadership roles. Furthermore, the Framers’ experiences evidence the importance of both addressing
“authority issues” at the beginning of negotiations and fully considering the impact of decision rules.
Before proceeding, I would like to discuss the primary source for this Article--the notes that James Madison took during the
Convention. Although written by one man--who held strong views and was an active participant in the debates--there are
reasons to conclude that Madison created a fairly accurate and comprehensive record of the Convention process. 12 Madison’s
preparation for the Convention led him to realize the importance of creating an accurate record for posterity. He explained in
his introduction:
The curiosity I had felt during my researches into the History of the most distinguished Confederacies, particularly those of
antiquity, and the deficiency I found in the means of satisfying it more especially in what related to the process, the
principles, the reasons, & the anticipations, which prevailed in the formation of them, determined me to preserve as far as I
could an exact account of what might pass in the Convention whilst executing its trust, with the magnitude of which I was
duly impressed . . . .13
*284 Madison took his job as a recorder seriously.14 He thought at length about how to create a consensus among free people
for a stronger national government. He clearly understood that good process--from effective role assignments to the method
of ratification--was essential to building a consensus and creating a nation. Thus Madison consciously and conscientiously
recorded discussions about process and elements of deliberations relating to process issues.
II. Some of the Challenges of Multi-Party Negotiations
The players of our game are so many, their ideas so different, their prejudices so strong and so various, and their particular
interests, independent of the general, seeming so opposite, that not a move can be made that is not contested; the numerous
objections confound the understanding . . . . 15
Benjamin Franklin Multi-party negotiations are by nature complicated and difficult. 16 The negotiation at the Constitutional
Convention was no exception. It is often challenging merely to determine the task of a multi-party negotiation, and to decide
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which groups and players’ involvement is prerequisite to reaching a viable and legitimate negotiated solution. 17 These
challenges can be further complicated because sometimes the task will depend upon which parties are involved, and
sometimes which parties are involved will depend upon the task. 18 *285 Another challenge is simply getting the key players
or their representatives to attend the negotiation. Parties may be unable or unwilling to give representatives authority to speak
and make decisions on their behalf,19 they may feel the negotiation itself is not useful or legitimate, 20 or they may be unable
to overcome logistical barriers.21 Even if representatives reach the multi-party negotiation, countless hurdles still lie in their
path. For instance, representatives will be ineffective if they do not have sufficient authority to speak for their group (or
themselves, as the case may be) and make decisions. Of course, the less flexibility representatives are given by their groups
to maneuver on positions, the less likely a solution (especially a creative one) will be found. All of these common initial
challenges posed potential obstacles to the success of the Constitutional Convention.
Disorganized group thinking also often plagues multi-party negotiations. It is easy to see, for example, that the delegates to
the Constitutional Convention of 1787 faced a Herculean task. The fifty-five men who participated each had his own
thoughts, perceptions, experiences, prejudices, philosophical understandings, and emotions. The task of logically constructing
a better form of government would have been challenging enough for one of them, had he merely had to sort out his own
ideas and experiences.22 In this case, fifty-five men *286 were trying to sort out their thoughts on the subject together. 23
Many came to the Convention with little more than a sense that something was wrong, a feeling that there needed to be a
change, and some general principles and interests. Only a few of them had already thought about the subject in great detail. 24
The Convention, like any negotiation with multiple participants, could have deteriorated because of unsystematic and
confused thinking.
Multi-party negotiations also tend towards problems concerning communication management and individual participation.
The more people involved with a negotiation, the more communication there is--making discussions difficult to manage25
and making it harder for everyone to have a chance to participate sufficiently. The size of the negotiating group “has been
found to be negatively correlated with average member input. It therefore is presumed to influence . . . the amount of critical
discussion that ideas receive and, through this, decision quality . . . .”26 Furthermore, the more participants, the more
differences there are likely to be.27 The Framers understood that the larger the group, the more difficult it is to establish
logical and productive deliberation. Madison, for example, wanted the Senate to have fewer members than the House of
Representatives so that it could proceed, “with more coolness, with more system, & with more wisdom . . . .”28
The Framers faced another potential multi-party negotiation obstacle to fostering cooperation while dealing with multiple,
complex, *287 inter-connected issues. It was possible that, for each individual delegate, the way each issue was resolved
would uniquely influence the way he would feel about all of the other issues. 29 The potential complexity of the negotiation
was staggering.30 Further complicating the Framers’ task, some of the most frequently relied upon tools used for creating
cooperative behavior lose force in multi-party situations. Saadia Towal has explained:
In bilateral negotiation, the norm of reciprocity facilitates the exchange of concessions. But the reciprocal exchange of
concessions often loses its meaning in multilateral negotiation because a concession offered to one participant may have a
differential effect upon the rest, and may even be considered by some as detrimental to their interests.31
Thus, cooperation is not only inherently more difficult to achieve in a multi-party setting, but some of the most useful tools
normally used to help achieve it in bilateral negotiations are less potent in these contexts.
Group deliberation can also be hindered by internal and external group pressures experienced by individual delegates.32 At
the Constitutional Convention, the delegates potentially faced a number of such pressures. They faced potential pressures
from a public very interested in the Convention proceedings. Delegates also faced potential pressures from the State
legislatures who had sent them to represent their States, sometimes with very specific directives. 33 Both of these pressures
could have limited negotiation flexibility, lessening the likelihood that an optimal settlement would be found. *288 Thus it
seems that the less “virtual”34 the representation, the more difficult it may be for representatives to deliberate productively.35
Constituents, like all people, tend to get caught up in particular positions. Getting constituents to focus on their underlying
interests (which are more subtle and difficult to discern, but can often be satisfied with greater flexibility than particular
positions)36 can prove an overwhelming task for representatives. When representation is more “actual,” representatives are
often directed or feel pressured to maintain inflexible positions that are not even within the range of options to which other
parties could agree.37 In addition, often, “[i]f negotiators get too close to opponents, constituents become suspicious, monitor
the negotiators, and thereby reduce their flexibility to act and produce a good agreement.”38 Representatives are aware that if
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they appear to learn and share with other representatives, they may risk losing credibility with their own constituents. For
many it is a risk not worth taking. Negotiation flexibility can also be limited by influences within a delegation. Delegates
from the same State who get *289 stuck in positional thinking could limit an open-minded delegate’s freedom to work on
resolving interests.39 Other pressures at a negotiation, from friends and strong interest groups, can also make a delegate feel
like he has insufficient room to maneuver.
Another potential threat (or sometimes a potential aid) to thoughtful deliberation at a multi-party negotiation like the
Constitutional Convention, is the possibility that binding coalitions will form. George Washington, in his Presidential
Farewell Address, warned that political parties get in the way of public bodies being “the organ of consistent and wholesome
plans digested by common councils, and modified by mutual interests.”40 Formalized coalitions can limit productive
deliberation and exchanges of ideas because “it is often difficult for coalitions to agree on a common negotiating stance, [so]
any consensus that a coalition does reach may well leave little room for flexibility . . . .”41 For example, at the Convention, it
was possible that large States and small States could have divided into formal opposing forces--each speaking with only one
voice for the duration of the Convention. This would have made it more difficult to discuss fully and openly issues about
which States were more naturally divided by regional or economic interests.
It is important not to forget that human nature can also make negotiations difficult. The more people at the table, the more
emotions, stresses, relationships, personality quirks,42 public speaking *290 inadequacies,43 and personal hang-ups could
potentially present obstacles. Issues like homesickness,44 physical discomfort, personal economic concerns, excessive
self-involvement,45 and regional prejudices were especially likely to negatively influence the Convention in 1787. At a
deeper level, individuals’ narrow visions of self-interest can also get in the way of group consensus on shared interests. 46
Getting past these potential hazards to create cooperative, thoughtful and creative group problem solving presents quite a
challenge. The goal of the negotiation needs to be decided. The participants need to be determined. Authority has to be within
easy reach. Parties to the negotiation have to gather. Processes must be found to clarify thinking in a systematic manner so
that all group members can understand from whence disagreement stems, and focus on resolving those issues.47 Methods
must be found to encourage members to move beyond entrenched thinking and to open their minds to a wide range of
possibilities (including ones that they will later discard) so that more creative options can be considered. 48 Human fallibility
also must be taken into account. There is no one, simple way to accomplish all of these tasks. Nor do they necessarily all
have to be *291 accomplished for an agreement to be reached. However, accomplishing these tasks helps ease the way to
consensus. The subsequent sections of this article discuss the processes and methods the Framers used to grapple with the
challenges of multi-party negotiation. Their level of success on the particular challenges posed by their negotiation context
varied, but their creative and thoughtful efforts offer much from which to learn.
III. Fostering Thoughtful Deliberation and Creativity
It is easy to forsee that there will be much difficulty in organizing a government upon this great scale . . . yet with the proper
degree of coolness, liberality and candor (very rare commodities by the bye), I doubt not but it may be effected . . . . 49
George Mason to his son, shortly before the Convention started The thirty men who gathered in Philadelphia on May 25,
1787 to find a remedy for their Confederacy’s problems all had process on their minds. Those in attendance spent the first
two and one-half days of the Convention sessions exclusively50 trying to determine how they--a group of men with different
ties, interests, and beliefs--could reach a shared understanding and agreement on how to solve their collective governance
woes. These men were experienced politicians, familiar with the workings of representative bodies at both state and national
levels.51 Thus, as a group, they had a fairly sophisticated background for understanding group dynamics--a background they
put to use in creating a framework that would encourage productive dialogue and frank deliberation. 52
These men understood the importance of productive dialogue and frank deliberation for creating a workable and wise
consensus in a multi-party negotiation. They understood that deliberation gives negotiators opportunities to learn from each
other. Deliberation can, thus, result in ultimate decisions that are wiser and more strongly *292 supported than they otherwise
could have been.53 Without deliberation, there cannot be group creative brainstorming, nor can there be as many
opportunities for creating option-package trade-offs (which are an important way to create compromises in multi-party,
multi-issue negotiations).54 Without deliberation, it is difficult even to find the best questions to put to a vote in multi-issue,
one-shot negotiations between equals.55
In their efforts to create a framework for deliberation and creativity, the Framers spent the first working day of the
Convention discussing role assignments and forming a committee whose task it was to propose procedural rules. 56 During
the second day of the Convention, those present discussed the procedures that had been proposed by the committee, and
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asked the committee to reconvene to consider further issues.57 Finally, on the third day, the delegates wrapped up their initial
process negotiations with a vote on the proposed rules before they formally began discussing what brought them to the
Convention.58 Although some role assignments were formally made on the first day of the Convention, other roles were
unofficially assumed both before and after the Convention deliberations began. Through both their choice of procedural rules
and with the help of their wise process leaders, the Framers were successful in creating an environment in which they could
learn from each other.59
*293 A. Fostering Thoughtful Deliberation and Creativity Through Procedural Rules
1. The Confidentiality Rule
One of the earliest rules established by the Convention restrained the members from any disclosure whatever of its
proceedings, a restraint which will not probably be removed for some time. I think the rule was a prudent one not only as it
will effectually secure the requisite freedom of discussion, but as it will save both the Convention and the Community from a
thousand erroneous and perhaps mischievous reports. 60
James Madison in a letter to James Monroe More than any other procedural rule that the assembly adopted, the
confidentiality rule was perhaps the most significant.61 Confidentiality, at that time, was out of the ordinary62 and was at
times difficult to maintain (the press63 and the public64 taking great interest in the proceedings, and some critics taking
offense at the rule65). *294 However the Framers did manage to maintain it astonishingly well, 66 and they used it (for the
most part) to their advantage.
Madison’s notes show little initial debate on the subject of the confidentiality rule. What his notes do indicate is that the
Committee on Standing Rules and Orders did not come up with the confidentiality rule by itself. On the second day of the
Convention, after hearing the report of the Committee, a delegate moved that the House provide against “licentious
publications of their proceedings.”67 The Committee then took that delegate’s comment, 68 and returned the next day with a
strict, bright-line rule providing “[t]hat nothing spoken in the House be printed, or otherwise published or communicated
without leave.”69
It seems fairly evident, from the Framers’ comments both inside and outside of the Convention, that they wanted rules
capable of stimulating thoughtful and frank dialogue, to help lead them to a consensus.70 The confidentiality rule provided
these conditions by keeping outside constituents at arm’s length--preventing them from pressuring representatives to become
entrenched in positions, and preventing representatives from letting their concerns about appearances hinder substantive
discussions.71 Many of the Framers worked *295 under the assumption, expressed by George Washington, that “the
multitude are often deceived by externals.”72 Confidentiality thus freed the Framers both to explore a wide range of options
and to learn from each other, without appearing weak to outside parties (including their own constituents). 73 Madison noted
many years later:
Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to
maintain their ground, whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was
satisfied of their propriety and truth, and was open to the force of argument. 74
The confidentiality rule offered delegates an opportunity to be candid, to express things that would have been hard to say if
interested outsiders were listening.75 This confidentiality provided delegates with a concrete opportunity to address concerns
(both their own and others’) that may have otherwise remained below the surface 76 and *296 hindered progress. Parties are
more willing to share, listen, and explore if they are not concerned that what they say can be used against them later.
The confidentiality rule is inter-connected with a “virtual” type of representation. Without representatives having a certain
degree of flexibility to do what they think is in their constituents’ best interests, confidentiality only provides limited benefits.
However, when representatives do have sufficient flexibility to use a rule of confidentiality, the rule necessarily reduces even
more the degree of control constituents can lever over their representatives. This reduction of direct control can give
representatives more freedom in which to explore and learn. For example, in response to Gerry’s assertion that “[t]he people
of New England will never give up the point of annual elections,” Madison replied:
No member of the Convention could say what the opinions of his Constituents were at this time; much less could he say what
they would think if possessed of the information & lights possessed by the members here; & still less what would be their
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way of thinking 6 or 12 months hence. We ought to consider what was right & necessary in itself for the attainment of a
proper Governmt.77
On a similar note, Govourner Morris contended:
Much has been said of the sentiments of the people. They were unknown. They could not be known. All that we can infer is
that if the plan we recommend be reasonable & right; all who have reasonable minds and sound intentions will embrace it,
notwithstanding what had been said by some gentlemen.78
Without a somewhat distant and flexible form of representation, a confidentiality rule’s maximum utility will not be
achieved.
An additional set of motivations for the confidentiality rule concerned the Framers’ need for public support of their proposal.
These motivations are clearly set out in Madison’s Notes. On the last day of the Convention, Benjamin Franklin requested
that all delegates keep confidential their concerns about the proposed Constitution and their differences with other delegates.
Franklin believed that confidentiality could be used to make the final proposal appear more strongly supported than it
actually was, and consequently improve its chances of being ratified by the American people. Evidence of division would
*297 have been used by opponents of the Constitution.79 Thus, Franklin explained, “[t]he opinions I have had of [the
Constitution’s] errors, I sacrifice to the common good.”80 Similarly, Rufus King had earlier written that an object of the
confidentiality rule was to leave “the Report of the convention to stand or fall on its own merits.”81 After Franklin’s pleas,
the delegates decided that the Convention President should keep the Convention journals confidential. 82 Madison, who must
have been persuaded by these and other arguments, went so far as to refuse to allow his notes on the Convention to be
published until after his death. As he was the last of the Framers to die, the confidentiality of the Convention was protected to
a great extent throughout all of the Framers’ lifetimes.83
Although the Framers put forth some strong arguments on behalf of secrecy, a confidentiality rule in a multi-party
negotiation cannot be used without some hazard to the legitimacy of the proceeding and to the interests of non-participants.84
When constituting a new form of government, Madison believed the government must be structured such as to take account
of “[t]he truth . . . that all men having power ought to be distrusted to a certain degree.”85 In the Framers’ discussions about
the proposed United States Congress, they agreed (by a majority vote) that the legislature should not be allowed to keep their
deliberations confidential, “except such parts thereof as in their judgment require secrecy.”86 James Wilson made a case
against confidentiality in Congress, arguing that, “[t]he people have a right to know what their Agents are doing or have
done, and it should not be in the option of the Legislature to conceal their proceedings.”87 Why then did Madison trust the
Convention delegates not to abuse their own power? And why did the delegates not hold themselves to the *298 same
standard to which they held Congress? They might have argued that their situation fit under a “secrecy” exception. However,
such an argument does not account for potential harms, especially to those poorly represented constituencies who could be
easily neglected or taken advantage of without the support of a public forum.
If asked, Madison might have argued that a confidentiality rule for a multi-party negotiation would be more acceptable if
checks, which took account of human nature, were instituted. 88 Awareness that an outside ratification of the agreement could
act as a “check” on the Framers probably motivated Madison, in part, to argue as strongly as he did for ratification of the
Constitution by the people.89 During the Convention Madison explained to his fellow delegates:
The Convention ought to pursue a plan which would bear the test of examination, which would be espoused & supported by
the enlightened and impartial part of America, & which they could themselves vindicate and urge. It should be considered
that altho’ at first many may judge of the system recommended, by their opinion of the Convention, yet finally all will judge
of the Convention by the System.90
Hamilton, if asked, might have suggested that non-institutional “checks” accounting for human nature could also help render
the confidentiality rule more acceptable. For example, he might have thought that the Framers’ love of fame (their desire to
be remembered well by their countrymen, by their peers in other countries, and by posterity) would ease the tension between
their self-interest and the public interest.91 This non-institutional check was especially powerful in combination with the
record-keeping that occurred during the Convention, which assured delegates that their speeches would be preserved for
posterity to judge.
The self-interested passions of the delegates, if properly aligned with the interests of the people, could also act as a “check.”
Both Franklin and Mason urged their fellow delegates to work, self-interestedly, for the common good. Franklin urged:
*299 This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich, will
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not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from
removing into this Country.92
Whereas Mason commented:
He had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy; considering
that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but
certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every
family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and
happiness of the lowest than of the highest orders of Citizens.93
Thus, it is at least possible that some of the potential harms of negotiation confidentiality can be reduced through procedural
measures, especially when there is a sufficient alignment of participants’ self-interest with the interests of non-participants.
The question of whether the Framers’ use of confidentiality was sufficiently “checked” is an open question. The confidential
nature of the debates clearly made a difference in determining what was discussed. Dialogue was much more open and frank
than it otherwise could have been.94 However, it is not entirely clear whether this was invariably good for the cause of
democracy. For example, the discussion on May 31, concerning whether the first branch of Congress should be elected by the
people, might have been conducted differently had it been open to the public. Some delegates expressed anti-majoritarian
notions that would have been hard to justify openly to “the masses.” For instance, Sherman opposed “election by the people
[who,] he said [[,] want information and are constantly liable to be misled.”95 Gerry explained:
The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended
patriots. In Massts it had been fully confirmed by experience that they are daily misled into the most baneful measures and
opinions by the false reports circulated by designing men, and which *300 no one on the spot can refute . . . . He had . . . been
too republican heretofore: he was still however republican, but had been taught by experience the danger of the levilling
spirit.96
Arguments such as Sherman and Gerry’s created strong impulses toward a less democratic government design. However,
because their feelings were actually expressed, those delegates more sympathetic to the people could attack anti-majoritarian
arguments directly. Thus Mason responded to Sherman and Gerry by arguing “strongly for an election of the larger branch by
the people . . . . He admitted that we had been too democratic but was afraid we s d incautiously run into the opposite extreme.
We ought to attend to the rights of every class of the people.”97 He also, as noted earlier, appealed to the delegates’
self-interest, pointing out that their descendants would be distributed throughout all classes of Americans--and thus it would
be in the delegates’ interests to create a fair system for all. 98
Others, most notably Benjamin Franklin, were also strong voices for the people on issues throughout the Convention.
Franklin pointed out the peoples’ virtue during the Revolutionary War;99 he appealed to the Framers’ virtue by referring to
the Scriptures; he appealed to their love of fame and their self-interest; and he appealed to their reason--noting that “[i]f
honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the
possession of property increased the desire of more property. Some of the greatest rogues he was ever acquainted with, were
the richest rogues.”100
Despite the anti-democratic speeches of Sherman and Gerry, “the people” were given control of the House of
Representatives. Sherman and Gerry’s speeches, however, still raise the question of whether the American Constitution
would have been even more democratic had “the people” been able to listen to the debates. On the one hand, there were
strong voices for “the people” at the Convention, and the Framers did give “the people” the final say through ratification. On
the other hand, without confidentiality, anti-majoritarian voices may have been less influential and the Constitution put forth
may have been even more democratic. This raises further questions *301 as to whether the Constitution is better for being
more removed from the people, and whether any agreement could have been reached at all had it not been for the
free-flowing discussions that resulted from the confidential nature of the negotiations. 101
Using a confidentiality rule at a multi-party negotiation simultaneously carries many potential benefits and risks. It can help
lead to a culture of openness and learning. It can free participants from confining constituent and outside pressures. Finally,
the rule can help remove final emphasis from the process, and place it on the agreement. However, confidentiality should
only be used with great caution. The rule poses great risks to the negotiation’s legitimacy, especially when representatives’
interests are not aligned with those whose interests should be addressed in the negotiation.
2. Procedural Rules Intended to Evoke Creative Brainstorming
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Researchers at the Conflict Management Group have pointed out that “[w]here there is no potentially acceptable option on
the table, one must be invented before agreement can be reached.”102 Creative brainstorming happens more readily when the
process of generating options can be separated from the narrowing process of making commitments. Creative brainstorming
works best when “it is made absolutely clear that everything said is without prejudice and without commitment of any
kind.”103 This kind of common sense wisdom was well understood by the delegates at the Constitutional Convention. It is
clear that the Framers designed many of their procedural rules for the express purpose of encouraging creative brainstorming
for ideas and option packages.
The first objection to the rules set out by the Committee on Standing Rules and Orders was that some of them might stifle
progress by binding delegates to their past ideas and statements.
[King] objected to one of the rules in the Report authorising any member to call for the yeas & nays and have them entered
on the minutes. He urged that as the acts of the Convention were not to bind the Constituents, it was unnecessary to exhibit
this evidence of the votes; and improper as changes of opinion would *302 be frequent in the course of the business & would
fill the minutes with contradictions.104
Mason seconded the objection, and added that “such a record of the opinions of members would be an obstacle to a change of
them on conviction . . . .”105 These two objections were sufficient to ensure that the proposed rule was rejected. They indicate
that the delegates realized the importance of being able to brainstorm, to flesh things out, and to show preferences, without
having to commit. They also illustrate the delegates’ awareness of “identity” issues. The Framers did not want particular
delegates to feel they would be perceived as hypocritical or weak if they changed their minds. They did not want positions
tied to identities. By separating the two, the Framers made it easier for delegates to leave themselves open to persuasion and
for vote swapping.106
The Framers also took care to differentiate tentative agreements from more permanent ones. A delegate in the Assembly
made a motion “to provide that on the one hand the House might not be precluded by a vote upon any question, from revising
the subject matter of it when they see cause, nor, on the other hand, be led too hastily to rescind a decision, which was the
result of mature discussion.”107 He sought a rule that would allow them to make tentative agreements and explore options
that they otherwise would be hesitant to explore. Working from these sentiments, the Committee on Standing Rules and
Orders came back to the Assembly with a rule that provided creative freedom along with disincentives to return to issues too
easily. The rule provided:
That a motion to reconsider a matter which had been determined by a majority, may be made, with leave unanimously given,
on the same day on which the vote passed; but otherwise not without one day’s previous notice: in which last case, if the
House agree to the reconsideration, some future day shall be assigned for the purpose.108
Along the same lines, the Framers allowed votes on matters to be postponed, until after other issues had been placed on the
table so *303 that discussion could be more mature. It is important when thinking about these rules to put them in the context
of the decision rules under which the Framers chose to work. Although individual issues were decided by majority vote by
state (with each state receiving one vote), the entire package (the Constitution) was unanimously agreed to by all of the
states.109 The combination of voting rules with the possibility of reconsideration allowed the Framers to take advantage of
the strengths of the voting rules (e.g., the ease of majority voting and the integrating effect of a unanimous decision rule) and
avoid some of their defects (e.g., the possibility of majority voting not eliciting strengths of preferences and some of the
difficulties of achieving unanimity).110
Before the Convention, Edmund Randolph had proposed to James Madison that issues be kept separate from each other so
that each State can “reject one part, without mutilating the whole.”111 Madison responded that, in his opinion, such a process
was not feasible since “[p]articular States may view the different articles as conditions of each other, and would only ratify
them as such.”112 One of the strengths of the rules allowing reconsideration was the diminished likelihood that delegates
would get overly frustrated from losing on a particular issue, because the possibility existed of returning *304 to that issue
later. These rules also gave delegates more flexibility for working out packages. For example, at one point King said he:
wished to know what influence the vote just passed was meant [to] have on the succeeding part of the Report, concerning the
admission of slaves into the rule of Representation . . . . The admission of slaves was a most grating circumstance to his
mind, & he believed would be so to a great part of the people of America. He had not made a strenuous opposition to it
heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to
strengthen the Genl Govt and to mark a full confidence in it . . . .”113
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This disturbing example illustrates how the procedural rules along with the decision rules helped the Framers come up with
linkages and packages in what could have been an overwhelmingly complicated, multi-issue negotiation.
The rules allowing reconsideration are not without their faults. First, the ability to come back to issues can allow parties to let
important deal-breaking issues slide for too long, only to come back to haunt the group later. For example, despite his active
participation throughout the length of the negotiations, Elbridge Gerry decided he was unwilling to sign his support for the
Constitution at the end because he did not feel comfortable with the outcome on one issue--the means of ratification that had
been chosen.114 Second, the rules can result in a great deal of repetition, which at times is tedious and inefficient. 115 For
example, the terms of the various office holders were often revisited. 116 However, without such circling, many ideas (such as
the electoral college, which lost the first time it was brought to a vote) would not have been revived successfully as the
overall package changed.117 Thus, the rules provide both detriments and benefits.
*305 3. Procedural Rules Intended to Evoke Greater Deliberation
Many of the Convention’s procedural rules illustrate the delegates’ desire to have thoughtful and systematic dialogue about
interests and ideas. In stark contrast to the rules that govern current Congressional debate, which are often used for partisan
and coalition-driven strategic purposes, the Constitutional Convention procedural rules were intended to foster understanding
and consensus. One rule in particular shows a concern for ordered participation. It provides: “A member shall not speak
oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been
silent, shall have been heard, if he choose to speak upon the subject.”118 This rule was intended to give everyone an
opportunity to voice ideas and concerns, while preventing any one delegate from dominating the discussion. Thus more
people were likely to feel and to be invested in the discussions.
The rules also show a concern for participants’ presence, as a full exchange of ideas and a full development of joint
understandings are possible only when negotiation participants are together. 119 Thus, one rule provided: “That no member be
absent from the House, so as to interrupt the representation of the State, without leave.”120 Another provided: “That
Committees do not sit whilst the House shall be or ought to be, sitting”121--so that delegates who worked on committees
would not miss hearing other delegates’ ideas and concerns, nor would they be prevented from expressing their own. 122
These rules are consensus-oriented in nature. They emphasize that sharing, listening, and learning matter.
The delegates also established procedural rules that would help systemize their communications and their thinking. One task
of these rules was to make issues as clear as possible so that everyone could understand what was at stake. For example, one
rule provided: *306 “A motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so
require, read aloud by the Secretary, before it shall be debated.”123 Another provided: “A question which is complicated,
shall, at the request of any member, be divided, and put separately on the propositions, of which it is compounded.”124
Overall, their procedural rules helped the Framers consider ideas carefully and learn from each other. Comments like
Gouvenor Morris’s, on July 20, that his “opinion had been changed by the arguments used in the discussion”125 evidence that
the Framers succeeded in creating an atmosphere conducive to learning from exchanges.
B. Fostering Thoughtful Deliberation and Creativity through Process Leadership
1. George Washington as Presiding Officer and Facilitator
The first action taken on the first working day of the Convention was the selection of George Washington to preside over and
to facilitate the Convention’s multi-delegate proceedings as President of the Assembly. 126 This decision is significant in
several respects. First, it was the Framers’ initial action, illustrating the importance they placed on this particular role
assignment. The delegates understood that having a facilitator who could keep the discussion moving in an orderly fashion
would help ensure that all voices would feel that they had an opportunity to be heard. 127 Second, their particular choice of
*307 facilitator is of great import, especially as he was universally supported 128 and respected.129 Even though he was part of
the Virginia delegation, all of the delegates seemed confident that Washington would not misuse his position to further the
interests of his own State. Furthermore, most seemed to think that the presence and prominence in the proceedings of the
greatly respected American Revolutionary General would lend the proceedings an air of legitimacy. 130 He also provided
supporters of a strong centralized government with a non-threatening, appealing model for an Executive. 131
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Washington took his role as a neutral presiding officer and facilitator very seriously. He was committed to the idea that the
Convention should be an honest and deliberative forum. Before the Convention, Washington told Madison that “my wish is,
that the Convention . . . probe the defects of the Constitution to the bottom . . . this, will stamp wisdom and dignity on the
proceedings, and be looked to as a luminary, which sooner or later will shed its influence.”132 From his first moments as
presiding officer, Washington made clear his intention not to control the outcome; but only the process. He presented himself
in a non-threatening and non-obtrusive *308 manner. On his acceptance of the Convention Presidency, “in a very emphatic
manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of
business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards
the involuntary errors which his inexperience might occasion.”133 Whether the tone of his acceptance was motivated by
humility, a desire to be transparent, political astuteness, or some combination thereof, he inspired great confidence and
respect. Such confidence in Washington’s ability to perform his role with neutrality, even when he had opinions on matters,
was clearly important.134 The Framers understood that process could be misused for partisan purposes, and many of them
wanted to free their framework from partiality to the greatest extent possible. That same desire is why they rejected a
proposal to have a committee supervise the Convention minutes.135
Only once, throughout the length of the Convention, did Washington set aside his formal neutral role to advocate a
substantive position during a formal session of the Convention. He did so near the end, when delegates seemed stuck on an
issue.136 Washington’s actions on that day were the exception that proved the rule that he understood the importance of his
role’s “neutrality.” Madison recorded:
When the PRESIDENT rose, for the purpose of putting the question, he said that although his situation had hitherto
restrained him from offering his sentiments on questions depending in the House, and it might be thought, ought now to
impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place.137
The one time when Washington set aside his neutrality during a formal session and interjected his opinion, everyone fell into
line behind him. Respect for Washington was so great that his comment ended debate, and his position received unanimous
support.
*309 The Committee for Standing Rules and Orders came up with some procedural rules intended to elevate the Convention
President’s authority and to help him facilitate deliberative discussions. 138 The rules ensured that each session would begin
and end with reference to, and regard for, the President. The rules provided that: “Immediately after the President shall have
taken the chair, and the members their seats, the minutes of the preceding day shall be read by the secretary.”139 Upon
adjournment of the Assembly, “every member shall stand in his place, until the President pass him.”140 These rules were
intended to set the President apart, as someone different from, and above, the other delegates. It emphasized for all present
that the President was worthy of respect and was in a position of authority. The intention of these rules was presumably, at
least in part, to make Washington a more effective process facilitator by demonstrating that he was not enmeshed in state
interests and politics while he performed his role. Another rule intended to aid the President by requiring that when a member
rose to speak, he “shall address the President; and whilst he shall be speaking, none shall pass between them, or hold
discourse with another, or read a book, pamphlet or paper, printed or manuscript--and of two members rising at the same
time, the President shall name him who shall be first heard.”141 Not only did this rule give the President authority to
recognize speakers and impose order on multi-delegate discussions, strikingly, it also prompted delegates to pay attention to
the President and the comments of others142--an attempt to ensure a thoughtful and deliberative negotiation. The Framers
seemed attuned to the idea that “[u]nless group members are listening, there is little idea in talking, because deliberation is
not taking place.”143
Finally, the committee proposed that members could be called to order to explain their conduct, and that the final decision on
those orders would be placed in the hands of the President “without appeal *310 or debate.”144 Thus the President possessed
disciplinary control, assuring he had sufficient power to keep members (with their human weaknesses) from getting out of
order and disrupting effective and respectful debate. Because the delegates imposed such authority on themselves, and placed
it in trusted hands, they were unlikely to resent it (nor did they ever appear to do so). 145 George Washington, who allowed
himself to be set apart from the rest of the delegates for Convention business as a neutral process leader, helped ease
communication and deliberation at the Convention.
2. Benjamin Franklin as Process Troubleshooter
Although Washington was greatly respected, he was not the only process leader at the Convention who helped further
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thoughtful deliberation. Significantly, he received a great deal of help from a subtle, skilled communicator who performed his
work from amongst the group--Benjamin Franklin. Franklin helped Washington keep the process on track by keeping an eye
out for process break-downs and helping find ways to smooth them over. As an “on the floor” process troubleshooter,
Franklin proved an invaluable process aid.
Franklin was a natural for the “process troubleshooter” role, in part because everyone was willing to pay attention to him,
even when they substantively disagreed with what he had to say. This stemmed from Franklin’s communication skills and the
high esteem in which his peers held him.146 An example of the respect his colleagues felt for him came after Franklin
proposed that the executive should not *311 be paid a salary, in order to prevent “monarchical” elements from developing in
the government. Hamilton, who actually wanted the executive to have somewhat monarchical-like characteristics,147
seconded Franklin’s motion, “merely [for] bringing so respectable a proposition before the Committee . . . .”148 Madison
noted that Franklin’s idea “was treated with great respect, but rather for the author of it, than from any apparent conviction of
its expediency or practicability.”149 Importantly, the Framers often followed Franklin’s procedural prompts, and answered his
interest-probing questions, even when they did not understand the depth of Franklin’s process wisdom.
Franklin was aided by a naturally nuanced understanding of communication and group dynamics. Washington had not been
the only person considered for the “presiding officer” role. Franklin had also been considered. Although Franklin did not
become a formal process facilitator, the way he handled the “role” delegation issue established him as an influential process
leader. Because there were two obvious candidates, and because Franklin wanted to start the Convention off as a cooperative
venture, Franklin and his Pennsylvania delegation decided to nominate Washington themselves. Madison noted that: “The
nomination came with particular grace from [Pennsylvania] As Doc. Franklin alone could have been thought of as a
competitor. The Doc. was himself to have made the nomination of General Washington, but the state of the weather and of
his health confined him to his house.”150 The nomination by the Pennsylvania delegation helped set a cooperative tone for
the Convention. It also helped make Washington a more effective presiding officer because it gave him the clear support of
the entire Assembly. And it established Franklin as a wise process leader who would humbly help smooth the process along
from within the group.
Long before coming to the Convention, Franklin’s life had been filled with experiences that taught him how process could be
used to further creative and thoughtful deliberation. For example, as a young man Franklin formed a mutual improvement
club151 with his *312 most “ingenious acquaintance” to discuss morality, politics, and philosophy. 152 To make the club’s
discussions more useful, Franklin and his friends turned to process. In his autobiography, Franklin explained:
Our debates were to be under the direction of a president, and to be conducted in the sincere spirit of inquiry after truth,
without fondness for dispute, or desire of victory; and, to prevent warmth, all expressions of positiveness in opinions, or
direct contradiction, were after some time made contraband, and prohibited under small pecuniary penalties. 153
These methods for fostering joint learning were truly “ingenious.” They used a facilitator to help ensure orderly discussion.
They explicitly laid out a goal of joint inquiry. They forbid the kinds of attacks that could stifle openness.154 Franklin
understood that being positional could get in the way of accomplishing one’s inter- ests.155
According to his autobiography, Franklin learned that a spirit of humble inquiry instead of a spirit of self-righteousness is
often the best way to lead discussions toward better outcomes. He wrote:
I made it a rule to forbear all direct contradiction . . . and all positive assertion . . . I even forbid myself . . . the use of every
word or expression . . . that imported a fix’d opinion, such as certainly, undoubtedly, etc., and I adopted, instead . . . I
conceive . . . or I imagine a thing to be so or so; or it so appears to me at present. When another asserted something that I
thought an error, I deny’d myself the pleasure of contradicting him abruptly, and of showing immediately some absurdity in
his proposition; and in answering I began by observing that in certain cases or circumstances his opinion would be right, but
in the present case there appear’d or seem’d to me some difference, etc. I soon found the advantage of this change in my
manner; the conversations I engag’d in went on more pleasantly. The modest way in which I propos’d my opinions procur’d
them a readier *313 reception and less contradiction; I had less mortification when I was found to be in the wrong, and I
more easily preval’d with others to give up their mistakes and join with me when I happened to be in the right. 156
Franklin later attributed this mode of non-dogmatic communication as the reason he became as influential as he did. 157 He
explained that this “habit (after my character of integrity) I think . . . principally owing that I had early so much weight with
my fellow-citizens when I proposed new institutions, or alterations in the old . . . .”158 Franklin saw the appearance of
humility and a spirit of inquiry as important tools that could be used to bring about more thoughtful and reasonable
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discussions and outcomes. He explained that “[i]f you ask others to educate you, you don’t even implicitly criticize them for
not knowing the answers. . . It is . . . easy to prod others to diagnose a problem instead of jumping to a solution. . . . You
don’t have to offer an answer yourself to raise the issue.”159 Franklin found that humbly asking interest-probing questions
helped him lead discussions. Interestingly, Franklin felt that his non-dogmatic communication methods made him influential
in public bodies, despite the fact that he was not an eloquent speaker. 160 In fact, at the Convention, he often wrote his
speeches out and had others read them on his behalf.
*314 Using his communication skills and understanding of process, Franklin played a crucial role in helping participants in
the Convention focus on their interests, instead of their positions, and on creative, cooperative, and positive
problem-solving.161 Franklin, who understood the importance of continuously paying attention to process development
issues,162 resisted the group’s natural tendency to break down from joint-problem solving into adversarial debate. One of the
ways he did this was by explicitly confronting process break-downs when they happened, encouraging all of the parties to
work under a more cooperative framework and to use wiser tools. For example, on June 11 he commented:
It has given me great pleasure to observe that till this point, the proportion of representation, came before us, our debates
were carried on with great coolness & temper. If any thing of a contrary kind, has on this occasion appeared, I hope it will not
be repeated; for we are sent here to consult, not to contend, with each other; and declarations of a fixed opinion, and of
determined resolution, never change it, neither enlighten nor convince us. Positiveness and warmth on one side, naturally
beget their like on the other; and tend to create and augment discord & division in great concern, wherein harmony & Union
are extremely necessary to give weight to our Councils, and render them effectual in promoting & securing the common
good.163
Franklin also used more subtle means to make the same point. At times he used humor,164 other times he used analogies, and
sometimes he simply helped clarify what the dispute was actually about so that delegates could understand that multiple sides
could have rational interests at the same time. For instance, he explained to the other delegates, in reference to the
representation dispute:
The diversity of opinions turn on two points. If a proportional representation takes place, the small States contend that their
liberties will be in danger. If an equality of votes is to be put in *315 its place, the large States say their money will be in
danger. 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.165
This speech ultimately helped move the issue into a compromise committee, 166 where Franklin proposed the compromise (of
equal representation in the Senate, proportional representation in the House, and money issues originating in the House) that
was more or less accepted by the Convention as a whole. 167 Franklin used all of the tools he had at his disposal to get parties
to think beyond themselves and their self-interested and adversarial perspectives.
One of the most interesting examples of Franklin’s efforts at process trouble-shooting happened at the end of June as the
process deteriorated, heat enveloped, and tempers rose. 168 Franklin began by summarizing some of the problems he saw with
how the Convention had been proceeding. He noted how little progress seemed to have been made, and how the Framers had
appealed to all sorts of different human standards. He commented:
The small progress we have made after 4 or five weeks close attendance & continual reasonings with each other--our
different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy
proof of the imperfections of the Human Understanding. We indeed seem to feel our own want of political wisdom, since we
have been running about in search of it. We have gone back to ancient history for models of Government, and examined the
different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist.
And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances. 169
Franklin then suggested that a divine standard be appealed to help delegates distinguish “political truth.”170 He went so far as
to make a motion that “henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations” be held
every morning and that “one or more” of the “Clergy of this City” officiate.171
*316 Why did Franklin, a self-admitted “real doubter in many points of our religious doctrine,”172 make a call for daily
prayers? Some of the answer becomes apparent through a careful scrutiny of his speech, and in particular the result he linked
to an appeal to God. Importantly, Franklin drew an analogy between the Framers and the “Builders of Babel.” What Franklin
called irreligious was letting oneself be controlled by selfish and local interests instead of being interested in mankind as a
whole. He contended that if the Framers followed the example of the Builders of Babel:
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We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a
reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance,
despair of establishing Governments by Human wisdom and leave it to chance, war and conquest.173
Franklin saw that the process was breaking down, in large part because delegates were getting entrenched in their local and
partial interests. He used the process suggestion of a daily prayer to appeal to the delegates’ sense of virtue, to look beyond
their own selfish interests to their shared interests. Franklin, although not himself strongly connected to religious institutions,
understood that religious rules and traditions often have beneficial uses. 174 His motion, although seconded, was never put to a
vote. Franklin appears to have calmed matters down that day, but unfortunately, by the next day, the conflict continued. 175
Franklin tried to encourage the other Convention delegates to focus on their interests, instead of just leaping to positions. For
example, when a single “Executive” was proposed, many of the other delegates were prepared to vote on the matter
immediately. Franklin encouraged them not to go too quickly, observing “it was a point of great importance[, he] wished that
the gentlemen would deliver their sentiments on it before the question was put.”176 Granted, Franklin did not favor a strong
Executive and this may have been his attempt to get others to think more about his own ideas. However, he also seemed
genuinely concerned that the Convention delegates think clearly about the issues they were discussing. His comment
succeeded in eliciting discussion of not only why the different delegates *317 felt the way they did about the subject,177 but
also how some of them saw the matter linked to other issues.178
Franklin also tried to clarify issues and encourage creative brainstorming from within the group. For example, when the mode
of judicial appointments was raised as an issue, Franklin summarized the options that had already been placed on the table,
then encouraged the other delegates to come up with more options. He observed “that two modes of chusing the Judges had
been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur
to other gentlemen; it being a point of great moment . . . .”179 He also understood that some issues were linked-- and should
be allowed to be treated as such. He commented “that this question could not be properly put by itself, the Committee having
reported several propositions as mutual conditions of each other. He could not vote for it if separately taken, but should vote
for the whole together.”180 This acknowledgement of linkage opened the door for more possible package options.
Process leaders in both formal and informal (or flexible) positions can play useful and complimentary roles in multi-party
negotiations. In the Constitutional Convention, Franklin’s informal process troubleshooting from within the group helped
Washington, who held a more central and formal role, move the process forward. The talents and “reputations” of negotiation
participants can be tapped into a variety of process leadership roles. The key is both to have participants develop their general
understanding of process (as Franklin did) and to have them assume process roles in ways that best utilize their strengths.
*318 C. Fostering Thoughtful Deliberation and Creativity Through Generating Substantive Motion
Moving a large number of inter-connected interests and preferences through group deliberation is quite a challenge in any
multi-party negotiation. How can participants organize their discussions to enable informed choices about both individual
measures and complete packages? How can they simplify their choices such that the possibility of an infinite number of
outcomes does not overwhelm the participants’ abilities to reach a workable consensus? Such tasks can be attempted in many
ways. The Framers tried several of them.
James Madison began (to his ideological advantage) by preparing for the Convention more than anyone else and by using his
preparation to help him set the substantive agenda for the Convention with a proposed option package for the other Framers
to consider. For the few weeks after Madison’s state delegation presented the “Virginia Plan,” in its entirety, the Convention
delegates discussed the elements of Madison’s package, issue by issue. After realizing that the Convention agenda made it
difficult comprehensively to address states’ rights concerns, some delegates tried to reset the agenda with another option
package, the “New Jersey Plan,” which focused on addressing their interests. The New Jersey Plan failed to re-set the agenda
of issues to go through on an individual basis, in part because it was almost immediately followed by a heavily nationalistic
agenda proposal by Alexander Hamilton. Hamilton’s proposal was so extreme that it placed the Virginia Plan back in the
center. Thanks in part to Madison’s early preparation and Hamilton’s extremist proposal, Virginia’s partly federal/partly
national agenda won out. The elements of the Virginia Plan formed the basis for what the delegates spent the majority of their
time debating.
Beyond using agenda-setting to control and simplify negotiations, the Framers used a number of other interesting techniques
to help them tackle complex inter-connections of complicated issues. For example, they generally started by considering
general propositions so they could come to agreements about deeper issues before getting caught up in messy “details.” They
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also were willing to postpone difficult issues to create momentum in more manageable areas and wait until connected issues
had been placed on the table. They used informal outside discussions to help move things along. They used
shifting-coalitions.181 And, when things truly got stuck or *319 overly complicated, they sent the most moderate delegates on
that particular issue off to a committee to come up with a compromise proposal. With the help of these techniques, the
Framers made significant substantive progress, despite the complexity of their task.
1. James Madison as Agenda Setter and Others’ Agenda-Setting Efforts
Mr. Madison . . . blends together the profound politician, with the Scholar. In the management of every great question he
evidently took the lead in the Convention, and though he cannot be called an Orator, he is a most . . . convincing Speaker.
From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best
informed Man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of any
Man in the Union.182
Georgia delegate William Pierce Agenda-setting is of the utmost importance in determining which substantive issues will be
addressed within the context of a multi-party negotiation.183 Studies show that decisions can “be influenced by the mere
organization of decision items on the slate from which choices [are] to be made.”184 Thus, purposive agenda-setting can
“change the structure of the situation itself and, hence, the outcomes.”185 David Lax and James Sebenius explain that there
are no a priori reasons why any particular issues or interests should be included on or excluded from the agenda for “[t]he
game is that which the parties act as if it is . . . If the parties deal with a particular set of issues, alternatives to agreement, and
possible agreements, then, those elements, in fact, make up part of that game.”186 Some Framers understood the importance
of agenda-setting more than others, and some realized its importance too late. Those who understood its *320 importance and
used it to their advantage set the course of the Constitutional Convention.
More than any other single man, James Madison set the Convention agenda. That is not to say that everything turned out the
way he wanted. For example, his firmly held belief that states should be represented proportionally in both the House and the
Senate187 was not adopted. However Madison clearly had a significant impact on the substantive outcome of the
Convention,188 in large part because he prepared more than anyone else. Madison was a well-educated man189 and an
experienced politician. In these characteristics, he was not alone at the Convention. What made Madison unique is that he
spent the months inbetween the Annapolis Convention and the Constitutional Convention rigorously studying politics,
drawing up a tentative plan of government for the United States, and cultivating allies who could help him work toward what
he felt was the ideal form of government.190 Through his friend Thomas Jefferson, Madison obtained a wealth of books
discussing political philosophy and economics, among other things. He examined republics, ancient and modern. He wrote a
paper analyzing and criticizing patterns of weaknesses he had discovered in existing and past confederations.191 He also
wrote a paper, entitled Vices of the Political System of the United States, which outlined the problems he saw confronting the
American political regime. He developed a thoughtful, coherent understanding of Political Philosophy and the American
political situation. And he used these understandings to outline a new form of government and to cultivate allies. In the
months preceding the Convention, Madison wrote letters to potential supporters (like Edmund *321 Randolph192 and George
Washington193) suggesting a new government based on a “middle ground, which may at once support a due supremacy of the
national authority, and not exclude the local authorities wherever they can be subordinately useful.”194 He provided his
friends with an outline for thinking about the principles and mechanisms on which a new form of government could be based.
He influenced their thinking.
Madison also arrived in Philadelphia eleven days early so he could spend time refining his plan. 195 The other Virginia
delegates arrived early as well. Madison spent two or three hours a day with them so they could come to a joint
understanding about their task and act as a cohesive team. 196 In this process of team-building, some of Madison’s ideas and
strategies were modified by his fellow delegates. However many of his ideas and strategies remained intact. 197 And because
they spent time developing a common understanding before the Convention began, the Virginia delegation became a much
stronger force to be reckoned with than did many of the other delegations (who would often disagree with each other and
undermine each other on the Convention floor). 198
The first event after the Framers decided on a process for the Convention was that Edmund Randolph presented the
Convention *322 with Virginia’s diagnosis of the challenges facing America, 199 the governmental interests that needed to be
met,200 and a possible solution to their joint problems.201 The Virginia delegation as a team chose Randolph to present their
plan because of his strength at public speaking, his status as Governor of their State, and because George Washington had
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already been assigned the role of neutral presiding officer. 202 The issues and plan that Randolph presented, motivated in large
part by Madison, set the agenda for what the Framers discussed at the Convention. 203 Starting the day after Randolph
presented the plan, the Framers began discussing his plan, issue by issue. 204 Through discussion, and majority voting, they
came to tentative agreements on many of Virginia’s propositions. 205
Although all of the Framers had the opportunity to discuss the propositions set out by Virginia, without control over the
agenda, it was difficult for others to bring up new propositions or different combinations of multiple propositions that would
be better suited to their interests.206 So after the initial consideration of the Virginia Plan, New Jersey decided to try to reset
the agenda,207 by offering another plan for consideration that provided a less centralized vision for an *323 American
government.208 The New Jersey Plan provided concerned delegates with an opportunity to present a new option package for
consideration as a whole209 and to raise a fundamental issue that had not been properly addressed before (because Virginia
had tried to leave it off the agenda): the extent of the authority of the Framers to modify the Articles of Confederation. 210 The
New Jersey Plan did not succeed in permanently re-setting the agenda, in part because after it had been discussed for only
one day Alexander Hamilton tried to reset the agenda once again. 211 Hamilton’s plan was almost fully centralized and was
based on the idea that the “British Govt was the best in the world.”212 Among other things, Hamilton suggested that the
Executive and members of the Senate should hold their offices for life. 213 Although Hamilton’s plan, which was barely
mentioned in the days following its presentation, appeared to have had little impact, it was significant for at least two reasons.
First, presenting a nationalistic plan provided Hamilton with a visible forum for attacking the New Jersey Plan in its entirety
(Hamilton did not want to be limited to attacking the New Jersey Plan item-by-item). Second, it was so far on the other
extreme of the Virginia Plan, that it put the Virginia Plan back in the center of debates as the moderate alternative. Madison
quickly seized the opportunity that Hamilton provided, and by the day following Hamilton’s presentation, had moved the
deliberations back toward his own plan.214 Shortly after Madison finished his speech, the Framers decided to return to
considering the Virginia Plan, item by item.215
*324 The agenda-setting strategies of the Framers show that preparation can help an individual make a large substantive
impact on the outcome of a negotiation, especially if the preparation combines three avenues: (1) developing a theoretical
understanding of the problem; (2) developing a practical plan for resolving the problem; and (3) cultivating a team of
like-minded supporters. Setting the initial agenda can be particularly powerful. Although it is possible to try to alter the
agenda throughout the negotiation, it may be easier to establish or negotiate the agenda in the beginning. Nonetheless,
offering alternative agendas or option packages during the negotiation may be a worthwhile tactic, for they provide offerors
with an opportunity to address the problems raised by inter-connected issues that have been raised by others.216
2. Use of Generalities and Vague Terms
The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended
hereafter into details which will be precise & explicit.217
Nathaniel Gorham A simple way to make differences more manageable in a complex, multi-issue, multi-party negotiation is
to avoid references to details--at least in the beginning. Sometimes one word or one sentence can significantly complicate the
issues being considered. The Framers often tried to address the essential theoretical issues in their negotiation before
discussing practical differences or related theoretical issues that could have hindered or complicated their path to consensus.
The Framers tried, when possible, to bring out “big questions,” and leave “details” and “connected-issues” for later. A
delegate once *325 explained that “[t]he difficulties & disputes will increase with the attempts to define & obviate them.”218
Although the techniques the Framers used sometimes resulted in a (sometimes frustrating) circling back to issues that had
already been partially addressed, these techniques also helped to take away “static” and to make some of the issues easier to
address. One of the specific techniques that the Framers used was simply making proposals with blanks in them. 219 For
example, on June 2, Wilson made a motion that “the states be divided into _____ districts . . . .”220 This omission helped
delegates separate the idea of districts from any particular division of districts, about which the states would all have strong
feelings. It provided a greater possibility of theoretical consensus on the central issue. On June 5, Madison actually made a
motion to have a blank added into a proposition. He moved that “the appointment by the Legislature might be struck out, & a
blank left to be hereafter filled on maturer reflection.”221 Through this motion, Madison was able to separate issues that had
been connected, so that consensus could be achieved in the areas where it was possible.
The Framers’ use of general terms222 and provisions sometimes played a similar role to their use of blanks. For example, on
June 5 the Framers agreed “that provision ought to be made for hereafter amending the system now to be established, without
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requiring the assent of the Natl Legislature.”223 In this case, the Framers agreed to a general idea, with the understanding that
they would come back to the issues and discuss them in more detail at a later time. Similarly, Madison observed when
discussing a motion for proportional representation that part of the motion (which detailed on what basis representation
would be proportional) be struck out so that it would not “divert the committee from the general question.”224 Whereas
option-packages link issues together so they can be considered as a whole, these useful techniques help break issues down, so
that each element can be considered without detracting, divisive complexity.
*326 The use of vague terms and generalities in multi-issue negotiations, of course, is not entirely unproblematic. 225
Theoretical agreement on central issues will not always lead to agreement when the detailed applications are at stake. Issues
that some parties thought had already been resolved could become sources of breakdown later in the negotiation.
Furthermore, some parties could fear that by agreeing to the general idea they would be giving up negotiating power they
could have otherwise used later to their advantage. Thus, these tools work better when it is clear that the agreed upon issues
can be revisited. However, too much circling can become frustrating.
3. Use of Committees
We are now at a full stop, and nobody he supposed meant that we sh d break up without doing something. A committee he
thought most likely to hit on some expedient.226
Roger Sherman In multi-party negotiations, Committees can be used in myriad ways. The Framers’ use of them was
particularly astute. Committees played a crucial role in helping Convention delegates overcome substantive hurdles. The
Convention rules forbade committees from meeting during Assembly hours, so committee members did not have to choose
between conflicting obligations. Delegates attended their committee meetings and took their committee tasks seriously. More
importantly, committee members were chosen in such a way as to ensure that the chosen delegates had the most moderate
views on, or well-suited skills for, the particular issues and tasks for which the committee was created. Each time a
committee was formed, a vote was taken by ballot, “and the members who [had] the greatest number of ballots, altho’not a
majority of the votes present, [were] the Committee . . . .”227 This process led to individuals being chosen whose views on,
and approaches toward, the particular task were acceptable to a large number of people. The rules did not guarantee each
state a representative.228 Individuals who were “difficult” in the *327 general Assembly were thus generally not chosen for
committee assignments. This enabled the moderates to meet in a more intimate setting, and come up with a compromise
proposal that was likely to be acceptable to the Assembly as a whole. 229
The committees created to address the conflict about representation in the Senate provide an interesting example of how
committees can be used to help overcome substantive hurdles in a negotiation (even though some of these particular
committees were represented by state).230 Delegates called for a committee because Assembly deliberation had come to “a
full stop.”231 Without concessions on both sides, one delegate contended, “our business must soon be at an end.”232 Thus the
Framers agreed to create a task-oriented committee, “supposing that as the Come wd be a smaller body, a compromise would
be pursued with more coolness.”233 Chosen to be on the initial committee were men who had spoken in favor of seeking a
compromise, like Gerry from Massachusetts,234 and Franklin from Pennsylvania. Not chosen to be on the initial committee
were people like Mr. Pinkney, who had earlier said that he “thought an equality of votes in the 2d branch inadmissible,”235
and Madison, who had even opposed the creation of the committee, 236 much less opposed any sort of representation by state.
While in committee, Franklin suggested a *328 compromise that the committee decided to bring back to the Assembly. 237
Franklin proposed that states be represented proportionally by population in the House, and equally in the Senate; and that
certain types of bills originate solely in the House-- linking separate issues together in a compromise package that was
somewhat acceptable to almost everyone.238 Although a great deal of discussion followed239 and other committees were
created to address other aspects of the representation issue, the initial committee succeeded in moving the Framers out of a
deadlock and toward a workable compromise.
Besides their use of committees to help them reach compromises on tough issues, the Framers also took advantage of
committees to sort out some of the smaller issues and to speed along substantive motion. After they agreed to a number of
general propositions based on discussions of the Virginia Plan, the Framers sent them to a committee of five people “to report
a Constitution conformable to the Resolutions passed by the Convention . . . .”240 The Constitution proposed by that
committee substantively moved matters along to a great extent, returning to the Convention with a fully drawn out
Constitution.241 This Constitution then became the basis for the delegates’ discussion. As the Convention dragged on, the
Framers turned more and more frequently to committees to help move things along at a faster pace, and to find value-adding
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creative solutions242--trusting that in smaller groups of moderate and well-chosen delegates the tasks would be well carried
out. Even those who had been skeptical *329 of the use of committees at the beginning of the Convention, 243 appreciated
their use by the end.244 Committees both increased the speed of the proceedings, and created substantive value by providing a
smaller forum in which the more open-minded delegates could engage.
4. Outside Talks and Communications
[An assemblée des notables ] did me the honor of dining with me last Wednesday, when the cask was broached, and its
contents met with the most cordial and universal approbation. In short, the company agreed unanimously, that it was the best
porter they had ever tasted.245
Benjamin Franklin, in a letter to Thomas Jordon Informal talks and meetings serve important functions in multi-party
negotiations. First, they help participants address some of the human relationship concerns that can frustrate negotiations. It
helps for members of a group “to get to know each other, to test one another, and to find their place in the group process . . . .
Any occasion that provides opportunities for members to interact and get to know each other will ease some of the concerns
and anxieties experienced in the early stages.”246 These interactions help parties learn about each other as humans, instead of
as opponents, and thus can help make negotiation discussions less vitriolic. There is reason to believe that a large number of
such informal interactions occurred among the delegates outside of the Constitutional Convention--many even rented rooms
on the same hall at the same tavern.247
Second, outside talks can help delegates within the same delegation, or within the same interest group, form a common plan.
The Virginia delegation, for example, formed the Virginia Plan together before the start of the Convention. The small states
and large states also both met as groups outside of the convention to try to formulate plans on addressing representation. 248
For example, on June 14, “Mr. Patterson, observed to the Convention that it was the wish of several deputations, particularly
that of N. Jersey, that further time *330 might be allowed them to contemplate the plan . . . and to digest one purely federal . .
. .”249 With this outside time, New Jersey and its allies came up with the New Jersey Plan. And on July 17:
[B]efore the hour of the convention a number of the members from the larger States, by common agreement met for the
purpose on the proper steps to be taken in consequence of the vote in favor of an equal Representation in the 2d branch, and
the apparent inflexibility of the smaller States on that point. 250
However in this instance “time was wasted in vague conversation on the subject, without any specific proposition or
agreement.”251 The success of such meetings is not guaranteed.
Third, outside communications can help parties learn from each other. Alexander Hamilton, who had little power within his
state delegation,252 still played a significant role at the Convention in part because of his outside talks with other delegates.
For example, Hamilton was able to “revolutioniz[e]”253 the mind of Rufus King of Massachusetts who had at first been
distrustful of the Convention and opposed to radical alterations of the Articles of Confederation. Hamilton also actively
sought to influence Washington through private communications. On July 3, Hamilton wrote Washington a letter in which he
explained that the public was ready to accept a plan for active government.254 He wrote:
Not having compared ideas with you, Sir, I cannot judge how far our sentiments agree; but as I persuade myself the
genuineness of my representations will receive credit with you, my anxiety for the event of the deliberations of the
Convention induces me *331 to have this communication of what appears to be the tendency of the public mind.255
The Framers appear to have used outside meetings and interactions to help them in all of these various ways.
IV. Process Potholes
I had yesterday a letter from Davie in which he says “since you left us We have progressed obliquely and retrograded directly
so that we stand on the same Spot you left us” and when I left them much Progress was not made.256
William Blount Although the Framers often used process well to help them overcome the inherent challenges of multi-party
negotiations, they did not always do so. In fact, they stumbled several times. One of the decision rules used by the delegates,
and the delegates’ lack of clear authority to create a new form of Government, created particularly problematic implications
for the Convention deliberations. Decision rules and authority issues can be particularly difficult when there are a large
number of parties at a negotiation.
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A. Decision Rules
Mr Wilson objected to the Committee, because it would be decided according to that very rule of voting which was opposed
on one side.257
From Madison’s Notes The decision rule that a group chooses often will influence the group’s outcomes. 258 For example,
equal voting by geographic unit could lead to a different outcome on an issue than proportional voting by population. A
different number, or set, of people are required to agree for an outcome to be chosen. The Convention voting rule was
essentially majority rule for day-to-day business,259 with the hope of *332 reaching a comprehensive consensus on the final
package of decisions. One of the most important elements of the Convention voting rule was that the majority rule was based
on states. Each state had only one vote (which is significant because small states had a greater voice in the Convention than
their populations merited). Thus it was likely that the Convention would come to an agreement that did not quite represent
the desires of the majority of the population, since those living in large states were under-represented.
Even though the Virginia Delegation did not seem to realize it at the time, some kind of measure supporting small states, like
the equal representation that they received in the Senate, was almost inevitable because of this decision rule. Madison noted
in a footnote to his records:
Previous to the arrival of a majority of the States, the rule by which they ought to vote in the Convention had been made a
subject of conversation among the members present. It was pressed by Governeur Morris and favored by Robert Morris and
others from Pennsylvania, that the large States should unite in firmly refusing to the small states an equal vote, as
unreasonable, and as enabling the small States to negative every good system of Government, which must in the nature of
things, be founded on a violation of that equality. The members from Virginia, conceiving that such an attempt might beget
fatal altercations between the large & small States, and that it would be easier to prevail on the latter, in the course of the
deliberations, to give up their equality for the sake of an effective Government, than on taking the field of discussion to
disarm themselves of the right & thereby throw themselves on the mercy of the large States, discountenanced & stifled the
project.260
Delegates from large states faced the risk that the small states might not have participated if they had not been given an equal
vote, or that they might have remained but felt resentful. Would the small states have participated without voting by state?
Could the large states have proceeded without the small states? 261 While the answers to these questions are unclear, it is clear
that Madison and his *333 fellow Virginia delegates did not sufficiently account for the power of the decision rule that they
helped choose. Madison, believing persuasion to be a sufficient tool, contended that “if the principal States comprehending a
majority of the people of the U.S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States
would by degrees accede to it.”262 Others understood the power of the voting rule better than Madison. Patterson noted to his
fellow delegates that “[i]f a proportional representation be right, why do we not vote so here?”263 Hamilton observed that
“[t]he truth is it is a contest for power . . . .”264 Brearly even worked to get New Hampshire to the Convention so that its vote
could help the other small states.265 Madison and his allies wasted a great deal of time and energy because they did not pay
sufficient attention to the power of their voting rules. They tried persuasion, begging, praying, 266 and threatening267--but to
no avail in their negotiations over the Senate.268 The Convention proceedings show that the impact of voting rules should be
fully and realistically considered before a negotiation begins.
*334 B. Authority Concerns
I came here not to speak my own sentiments, but the sentiments of those who sent me. Our object is not such a Governmt as
may be best in itself, but such a one as our Constituents have authorized us to prepare, and as they will approve. 269
William Patterson Without authority from constituents, representatives can not legitimately make decisions on their
constituents’ behalf. Therefore, one of the first questions that mediators usually ask parties is whether they have full authority
to settle.270 For “[i]t is clear that the individual concerns of members regarding . . . authority need to be addressed if the . . .
groups are to function effectively.271 If authority issues are not clarified at the beginning, those issues are bound to come
back and haunt negotiation participants. Unfortunately, the Virginia Delegation did not prioritize the legitimacy of the
Convention’s authority on their agenda. They did not come up with a compelling framework for thinking about authority
issues until part-way through the Convention, by which time a great amount of time and energy had been wasted.
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From the first day of substantive deliberations, after the Virginia Plan had been presented, authority issues cast a shadow over
the deliberations. General Pinkney “expressed a doubt whether the act of Congs recommending the Convention, or the
Commissions of the Deputies to it could authorise a discussion of a System founded on different principles from the federal
Constitution.”272 And Gerry “seemed to entertain the same doubt.”273 The lack of confidence in their authority to make
decisions stifled many delegates during deliberations. The small states in particular used the lack of clear authority vested in
the Convention as an argument for why major changes to the representational system should not be attempted. On June 9,
Patterson argued that “[t]he Convention . . . was formed in pursuance of an Act of Cong s [and] this act was recited in several
of the Commissions, particularly that of Massts which he required to be read: . . . the articles *335 of the Confederation were
therefore the proper basis of all the proceedings of the Convention.”274 The discussions following the presentation of the
New Jersey Plan focused heavily on concerns about the delegates’ lack of authority to make a major change. 275 Lansing said
he grounded his support of the New Jersey Plan over the Virginia Plan in part because of the “want of power in the
Convention to discuss & propose [the Virginia Plan].”276 If these authority issues had been addressed adequately up front,
they would not have been used to avoid discussions of substantive issues.
How can authority issues be addressed? It obviously helps if authority is given clearly through what would be considered
“proper” channels. This kind of clear grant of authority was not available at the Convention. 277 The form of the outcome also
can be modified to fit the authority that does exist. On June 16, Wilson contended that “[w]ith regard to the power of the
Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose anything.”278 The Framers
eventually decided to treat the Constitution as a proposal and send it to the Congress for approval, and then to the people in
the various states for their ratification (thus covering most bases for legitimacy). 279 These kinds of considerations could have
been addressed as one of the first issues on the agenda. The Virginia delegates knew they were going to make a proposal for a
major change. They should have comprehensively addressed potential authority objections up front. Instead, they allowed the
question *336 of whether they had authority to create a constitution cast a continuing shadow on deliberations. 280
V. Conclusion
I have . . . often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that
[painting] behind the President without being able to tell whether it was rising or setting: But now at length I have the
happiness to know that it is a rising and not a setting Sun. 281
Benjamin Franklin, on the last day of the Convention The Constitutional Convention of 1787 provides opportunities for
understanding, and tools for more intelligently approaching, multi-party negotiations. The history of the Convention
illustrates both the increased complexity and difficulty of multi-party, multi-issue negotiations and that processes can and
should be consciously designed and negotiated to address groups’ particular process challenges. Although one set of
processes is not necessarily suitable in all situations, certain issues should always be addressed, and certain tools can be used
in a number of situations.
Among other things, the Framers’ negotiation experiences illustrate how differences can be manipulated to ease the path to
consensus. For example, processes can be designed to account for differing strengths of preferences. Through a variety of
means--such as voting rules, option packages, and deliberation--negotiators can use differences to create broader consensus
on complicated, inter-connected issues. Participants in multi-party negotiations can also take advantage of their differences in
communication styles and abilities. Individuals can assume process roles that take advantage of their personal strengths.
Through conscious process manipulation, differences can be turned into advantages.
The Framers’ experiences also help illustrate the importance of fostering learning and joint problem solving in a negotiation,
and how process design can be the means of so doing. Before negotiators can cooperate; they must be able to share their
concerns, hear the concerns of others, and feel comfortable enough with their environment to change their minds. Myriad
approaches exist to fostering such openness. For instance, confidentiality can help free negotiators from *337 outside
pressures to remain consistent. Process rules can specifically provide opportunities for negotiators to change their minds, and
to develop positive relationships with each other. Negotiators can also be discouraged from leaving the
deliberations--physically and mentally. Furthermore, process leaders can be used to help clarify issues and facilitate orderly
and productive communication.
The Framers’ insightful use of committees provides an interesting model that may prove useful in other contexts. The
Framers did not form standing committees. Rather, they created committees only when the need arose. At that point, they
voted by ballot for those they thought best suited to sit on the committee. Generally the delegates with enough support to win
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a seat were the more moderate or knowledgeable thinkers on the particular issue at stake. This selection process provided
opportunities for moderate minds to meet in less contentious and confusing arenas. The Framers also wisely decided to
prevent Assembly discussions from continuing while committees were in session. This ensured that the larger group could
proceed as a whole.
The Framers’ experiences also illustrate the importance of addressing authority issues up front, and fully considering the
ramifications of decision rules. Without a clear understanding of the bounds of a group’s authority, it is difficult to make the
fullest possible use of the maximum authority that could exist. Thus authority should be considered early in the negotiation,
as should the rules by which decision will be made. Decision rules strongly affect results as they determine who has power
and what information will be privileged. To avoid wasting time and energy, negotiators should choose voting rules carefully,
and be aware of the influence of the rules they use.
Analyzing the Convention of 1787 as a multi-party negotiation also provides useful opportunities to better understand how
process influenced the creation of the Constitution. Madison’s Notes on the Convention show how the Constitution is truly
the product of joint human effort. By consciously and intelligently managing their process, the Framers were able to learn
from each other during Convention deliberations in ways that made consensus possible. Their wise process management
allowed them to control what could easily have become an overwhelmingly complicated set of challenges. Although the
Framers did not all support every element of the Constitution, they were able to agree on a package that was acceptable to
almost all of them.
The role of individual influence on the Constitutional Convention is remarkable. Through both the strength of their
arguments and the *338 strength of their communication skills, individuals shaped both the form of the ultimate agreement
and aided the group in achieving consensus. For example, George Washington provided the process with order and
respectability. Benjamin Franklin smoothed over process glitches from the Assembly floor. James Madison, through his
extensive preparation, helped set which issues would be on the Convention’s agenda. Alexander Hamilton succeeded in
influencing others through the force of his ideas, even though he lacked voting power (as his ideas were not supported by his
state delegation as a whole). These and other individuals contributed greatly to the consensus achieved at the Convention.
The decision rules used at the Convention also influenced its outcomes. In particular, the Framers’ choice to vote by state
rather than population influenced the balance of power at the Convention. The voting structure enabled small states to take
more than their “fair share” of power in the new national government. Although a different decision rule probably would not
have led to the same result, small states may not have agreed to participate under any other rule.
The Framers’ decision to make their deliberations confidential also influenced their agreement. Without confidentiality,
consensus building could have become overwhelmingly difficult as outside constituents could have more easily applied
injurious pressures. With confidentiality, however, the Framers were able to debate issues that otherwise could not have been
explicitly addressed. Whether the Constitution benefited by having these issues openly addressed is an open question.
The Framers of the United States Constitution overcame many of the challenges inherent in any multi-party negotiation. With
the help of skilled process leadership and procedural rules that evoked creativity, deliberation, and substantive motion; the
Framers were able jointly to create a new Constitution. They provide us with a model from which we can learn both generally
about multi-party negotiations and specifically about how process influenced the formation of the Constitution.
Footnotes
d1
Dana Lansky is a 1995 graduate of Harvard College and a 1999 graduate of Harvard Law School. While at law school, she was
both a training director of the Harvard Mediation Program and an active mediator through the Program. While at law school, she
also was a teaching assistant both for Harvard-run negotiation workshops and for Harvard College American Political Thought
courses. After graduating from law school, Ms. Lansky was a Research Fellow at the American Bar Association’s Section of
Dispute Resolution. Currently, Ms. Lansky is an Associate at Foley, Hoag & Eliot llp. She would particularly like to thank the
following people for reading and commenting on drafts of her article: Lani Guinier, Gregory Janicik, Murray Dry, Russell
Muirhead, Jeff Seul, and Lorelei Lapreve.
1
James Madison, Notes of the Debates in the Federal Convention of 1787 653 (Adrienne Koch ed., 1987) (Benjamin Franklin,
Sept. 17, 1787) [Hereinafter Notes]. Throughout this Article, in any citation to Notes where Madison recorded the statements of
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an individual or included a document, the individual or document will be included in a parenthetical note at the end of the citation.
Other citations to Notes, without parenthetical reference, are Madison’s own observations or comments.
2
All states, except Rhode Island (which was busy dealing with internal controversies), were represented at some time during the
Convention. See Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress 376
(1979) [Hereinafter Beginnings]. The number of representatives present on any one day varied.
3
Notes, supra note 1, at 653 (Benjamin Franklin, Sept. 17, 1787).
4
“[I]n the early months of 1787, leading American politicians were quite skeptical of [the Convention’s] prospects .... William
Grayson ... believed ‘the whole will terminate in nothing;’ either the Convention ‘will not agree, or if they do agree, the States
will not ratify; our distresses are not sufficiently great to produce decisive alterations.’ Writing to John Adams in late February,
John Jay noted that ‘I do not promise myself much further immediate Good from the Measure than that it will tend to approximate
the public Mind to the Changes which ought to take place.’ Rufus King was ‘rather inclined to the measure from an idea of
prudence, or for the purpose of watching, than from an expectation that much Good will flow from it.” ’ Beginnings, supra note 2,
at 378-79. Part way through the Convention, John Lansing wrote to Philip Schuler that “[t]he business of the Convention is going
on very slowly and it is still in such a Stage as to render the Result very dubious.” Supplement to Max Farrand’s Records of the
Federal Convention of 1787 121 (James Hutson ed., 1988) [Hereinafter Supplement to Farrand].
5
Other forms could have sprouted. For example, before the Convention, Philadelphia newspapers had published a letter asking if it
might not be wise to give up the attempt to form “one General Government for the whole community” and instead “distribute the
United States into three Republics, who would enter into a perpetual league and alliance for mutual defence.” Carl Van Doren,
The Great Rehearsal 21 (1948) [Hereinafter The Great Rehearsal]. See also Notes, supra note 1, at 117-39 (The New Jersey Plan
and Hamilton’s National Plan, June 14-18, 1787).
6
See generally Beginnings, supra note 2.
7
James Madison wrote that “there never was an assembly of men, charged with a great & arduous trust, who were more pure in
their motives, or more exclusively or anxiously [devoted to the object committed to them.]” Notes, supra note 1, at 19. According
to Historian Jack Rakove, “the Convention, like any public body, contained mediocrity as well as talent. But the presence of
James Madison, Alexander Hamilton, James Wilson, Gouvernor Morris, John Dickinson, George Mason, Elbridge Gerry, and
others did guarantee that the Convention would include a critical nucleus of members capable of addressing fundamental issues
and articulating innovative positions.” Beginnings, supra note 2, at 377.
8
Notes, supra note 1, at 653 (Benjamin Franklin, Sept. 17, 1787).
9
Communication and Group Decision Making 4 (Randy Hirokawa & Marshall Scott Poole eds., 1996).
10
“Each point, though necessarily interrelated with the other points by the need to form a consistent whole in the final document,
was a matter of some discretion during debate. This discretion, this room for debate, argument, and potential advantage, provided
in each case the opportunity, not to say the promise, for conflict and disagreement ....” Calvin Jillson, Constitution Making:
Conflict and Consensus in the Federal Convention of 1787 23 (1988).
11
Some delegates resorted to inflammatory threats and name calling that jeopardized the cooperative nature of the Convention. For
example, at one point Mr. Bedford threatened that if the large states forced governance by the majority of the people, instead of
permitting governance by the majority of the states, “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.” Notes, supra note 1, at 230 (Gunning Bedford, June 30, 1787). At another point
of the representation discussion, Mr. Pinkney attacked the representatives of New Jersey by saying, “Give N. Jersey an equal vote,
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and she will dismiss her scruples, and concur in the Natil system.” Id. at 127 (Charles Pinkney, June 16, 1787). Please note that
the methods of spelling used in the original sources are retained in the quotations used herein.
12
“I chose a seat in front of the presiding member, with the other members on my right & left hands. In this favorable position for
hearing all that passed, I noted in terms legible & in abbreviations & marks intelligible to myself what was read from the Chair or
spoken by the members; and losing not a moment unnecessarily between the adjournment & reassembling of the Convention I
was enabled to write out my daily notes ... in the extent and form preserved in my own hand on my files.” Notes, supra note 1, at
17 (Madison’s preface). “It happened, also that I was not absent a single day, nor more than a cassual fraction of an hour in any
day, so that I could not have lost a single speech, unless a very short one.” Id. at 18. “[W]ith a very few exceptions, the speeches
were neither furnished, nor revised, nor sanctioned, by the speakers, but written out from my notes, aided by the freshness of my
recollections.” Id. (including a list of the few exceptions of furnished speeches).
13
Id. at 17 (emphasis added).
14
“I have taken lengthy notes of every thing that has yet passed, and mean to go on with the drudgery, if no indisposition obliges me
to discontinue it.” Letter from James Madison to Thomas Jefferson (July 18, 1787), in 10 The Papers of James Madison 105
(Robert A. Rutland et al. eds., 1977).
15
Letter from Benjamin Franklin to Pierre-Samuel Dupont de Nemours (June 9, 1788), in The Great Rehearsal, supra note 5, at 9.
16
“There is a world of difference between making a decision alone and making a group decision. The unique chemistry of social
interaction can distill the best that each member has to offer, creating a resonance of ideas and a synthesis of viewpoints. A
different chemistry can stop the reaction and contaminate the product. The catalyst for such social chemistry is communication.”
Communication and Group Decision Making, supra note 9, at 3.
17
“Productive negotiations cannot begin until two problems are solved: figuring out which groups should be represented, and
choosing representatives empowered to speak for the groups they claim to represent.” Lawrence Susskind & Jeffrey Cruikshank,
Breaking the Impasse: Consensual Approaches to Resolving Public Disputes 101 (1987).
18
For example, at the Annapolis Convention, which preceded the Constitutional Convention, few delegates arrived, presumably in
part because the task of addressing the States’ commercial ties was not sufficiently compelling. Because the delegates could not
accomplish their appointed task without more delegates present, they changed their task to one of calling for a more
comprehensive Convention of the States--what became the Constitutional Convention. See generally Beginnings, supra note 2, at
372-75.
19
For example, Rhode Island never managed to choose delegates to the Constitutional Convention because of internal state
contentions. See id. at 376.
20
The political choice by some delegates not to attend, or to fail to remain at, the Convention is worthy of further study. Did those
delegates make the correct choice not even to participate? Why did some delegates remain even in the face of important losses,
while others left? Could or should something have been done to make it easier for everyone to participate? See interview with
Murray Dry, Charles A. Dana Professor of Political Science, Middlebury College (Mar. 2000).
21
Of the seventy-four men the States chose as delegates to the Convention, only fifty-five of them attended--“the rest were tied up
with business or family matters, or were out of sympathy with the occasion and chose not to come. Even the fifty-five who did
show up were frequently absent for one reason or another; a few came late and left early. On most days there were probably not
more than thirty or forty men on the Convention floor at once.” Christopher Collier & James Lincoln Collier, Decision in
Philadelphia: The Constitutional Convention of 1787 (1986). James Madison noted in a letter to Thomas Jefferson that: “Mr.
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Wythe left us yesterday, being called home by the serious declension of his lady’s health .... Col. Blount is another member but is
detained by indisposition at N. York .... N. Hampshire has appointed Deputies but they are not expected; the State treasury being
empty it is said, and a substitution of private resources being inconvenient or impracticable.” Letter from James Madison to
Thomas Jefferson (June 6, 1787), in 10 The Papers of James Madison, supra note 14, at 29.
22
“If you find it difficult to get things done, it is often because your thinking is disorganized. It is hard to know where to start. You
think in circles, coming back to thoughts you have had before. You skip important steps. After thinking of one idea it is hard to
keep looking. Not only are you likely to jump around among different subjects of logical analysis--such as plans, facts, strategies,
and causes of difficulty--you are often unclear what you want your thinking to produce.” Roger Fisher et al., Getting it Done 77
(1998). An example of this at the Convention was the style of Gouvernor Morris, who was said to have been a captivating public
speaker who, nevertheless, “is fickle and inconstant--never pursing one train of thinking,-- nor ever regular.” 1787: Drafting the
U.S. Constitution 32 (Wilbourne E. Benton ed., 1986) (quoting Georgia delegate William Pierce).
23
“When you work by yourself, chaotic thinking is an obstacle. When you work with others, it can be a catastrophe. Disorganization
snowballs.” Fisher et al., supra note 22, at 99.
24
Cf. The Great Rehearsal, supra note 5, at 18-19.
25
See Touval, Multilateral Negotiation: An Analytic Approach, in Negotiation Theory and Practice 355 (J. William Breslin &
Jeffrey Z. Rubin eds., 1991).
26
Communication and Group Decision Making, supra note 9, at 7.
27
See Touval, supra note 25, at 355 (“The larger the number of participants, the greater the likelihood of conflicting interests and
positions, and the more complex the interconnections among the parties.”).
28
Notes, supra note 1, at 83 (June 7, 1787).
29
An example of this type of challenge at the Convention occurred on July 7 when Elbridge Gerry said he “thought it would be
proper to proceed to enumerate & define the powers to be vested in the Genl Govt before a question on the report should be taken,
as to the rule of representation in the 2d branch.” Madison responded “that it wd be impossible to say what powers could be safely
& properly vested in the Govt before it was known, in what manner the States were to be represented in it.” Id. at 254. C f.
Michael Watkins & Samuel Passow, Analyzing Linked Systems of Negotiations, 12 Negotiation J. 325, 326 (Oct. 1996).
30
Cf. Max H. Bazerman & Margaret A. Neale, Negotiating Rationally 128 (1992) (“Simply trying to coordinate all the parties’
preferences and interests [becomes] a difficult undertaking.”).
31
Touval, supra note 25, at 356.
32
Cf. Deborah G. Ancona et al., The Group and What Happens on the Way to “Yes,” 7 Negotiation J. 155, 165 (Apr. 1991).
33
“On reading the credentials of the deputies it was noticed that those from Delaware were prohibited from changing the article in
the Confederation establishing an equality of votes among the states.” Notes, supra note 1, at 24.
34
“Virtual representation ... assumes surrogate representation based on common interests ....” Lani Guinier, The Tyranny of the
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Majority: Fundamental Fairness in Representative Democracy 36 (1994).
35
See Roger Sherman, delegate, in Cass R. Sunstein, The Partial Constitution 22 (1993) (“I think, when the people have chosen a
representative, it is his duty to meet others from the different parts of the Union, and consult, and agree with them to such acts as
are for the general benefit of the whole community. If they were to be guided by instructions, there would be no use for
deliberation.”) (discussing why the first Congress should reject a proposal to add a “right to instruct their officials” to the Bill of
Rights). Cf. interview with Russell Muirhead, Associate Professor of Government, Harvard University (Mar. 1999).
36
See generally Roger Fisher et al., Getting to Yes: Negotiating Agreement Without Giving In (1981). An example of focusing on
interests instead of positions is when Mr. Wilson said during the Convention that “he was almost unwilling to declare the mode
which he wished to take place, being apprehensive that it might appear chimerical. He would say however at least that in theory
he was for an election by the people.” Notes, supra note 1, at 48 (James Wilson, June 1, 1787).
37
Erik Asard and W. Lance Bennet argue that the pressure on representatives to follow strictly their constituents’ (sometimes
uninformed) desires and to be able to justify their every move to their constituents is part of what is transforming modern Western
democracies “from being a forum for heated debate and a comparatively lively exchange of ideas into one dominated by only a
few substantive issues and a lot of quite streamlined rhetoric that is more likely to be the product of political marketing research
than of inspired leadership ....” Erik Asard & W. Lance Bennett, Democracy and the Marketplace of Ideas: Communication and
Government in Sweden and the United States viii (1997). Asard and Bennet worry that because of candidates’ rhetoric, this can
lead to “imagined communities” fragmenting into groups-- “further undermin[ing] the possibility for broad visions of society that
might promote identification across groups and mobilize support for enduring agendas of political action.” Id.
38
Cf. Ancona et al., supra note 32, at 166.
39
Frequently during the Convention, state delegations were unable to agree on how to use their state’s day-to-day votes. See, e.g.,
Notes, supra note 1, at 36 (New York’s vote on May 29, 1787, concerning whether a national government should be established).
Even in deliberations, intra-state differences proved to be problematic. See, e.g., id. at 243 (Hugh Williamson, July 5, 1787) (“Mr.
Williamson hoped that the expressions of individuals would not be taken for the sense of their colleagues, much less of their
States which was not & could not be known.”).
40
George Washington, Farewell Address, in The Writings of George Washington 299 (Worthington Chauncey Ford ed., 1892).
41
Touval, supra note 25, at 355.
42
For example, Georgia delegate William Pierce noted that Connecticut delegate Roger Sherman was “awkward, un-meaning, and
unaccountably strange in his manner ... the oddity of his address, the bulgarisms that accompany his public speaking as well as his
private speaking make everything that is connected with him grotesque and laughable ....” 1787: Drafting the U.S. Constitution,
supra note 22, at 28 (quoting William Pierce).
43
For example, at the Convention John Dickinson was said to be “an indifferent Speaker. With an affected air of wisdom he labors
to produce a trifle,--his language is irregular and incorrect,--his flouishes, (for he sometimes attempts them), are like expiring
flames, they just shew themselves and go out;--no traces of them are left on the mind to chear or animate it.” Id. at 32-33 (quoting
William Pierce). George Read was said to have oratory powers that were “fatiguing and tiresome to the last degree;--his voice is
feeble, and his articulation so bad that few can have patience to attend to him.” Id. And Luther Martin possesed “a good deal of
information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who
hear him.” Id.
44
See, e.g., Letter from George Washington to George Augustine Washington (Sept. 9, 1787), in Supplement to Farrand, supra note
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4, at 265 (“I am quite homesick ....”).
45
See Touval, supra note 25, at 355 (“Another impediment is the tendency of participants to engage in oratory and grandstanding.”);
Letter from William Livingston to John Jay (Sept. 11, 1787), in Supplement to Farrand, supra note 4, at 267 (“[T]here being
certain creatures in this world that are more pleased with their own speeches than they can prevail upon any body else to be ....”).
46
“I am however strongly impressed with fears, that your labours in Convention, though wisely conducted and concluded, will in
the end be frustrated by some of the States under the influence of interests operating for particular rather than general we[l]fare.”
Letter from Joseph Jones to James Madison (June 7, 1787), in 10 The Papers of James Madison, supra note 14, at 36.
47
See Fisher et al., supra note 22, at 100.
48
See id. at 95.
49
Letter from George Mason to his son, in Jillson, supra note 10, at 22.
50
See Notes, supra note 1, at 23-28 (description of May 25-29, 1787).
51
“Forty-two of the fifty-five delegates had served in Congress. Seven had been chief executives of their states. Eight had helped in
drafting their states’ constitutions.” William Peters, A More Perfect Union 24 (1987).
52
Their experience also allowed them to fall back on some basic parliamentary procedures as default rules (such as making motions
and requiring motions to be seconded before they would be further considered). This expedited their process negotiations, but also
perhaps allowed them not to think about process as much as they could have.
53
Jon Elster discussed Jurgen Habermas’s “idea that democracy revolves around the transformation rather than simply the
aggregation of preferences.” Jon Elster, Introduction, Deliberative Democracy 1 (Jon Elster ed., 1998). See also James D. Fearon,
Deliberation as Discussion, in Deliberative Democracy, supra, at 56 (“[As] a by-product of improving the decision more members
of the group will be brought to agreement and thus a greater number will work together to implement the decision properly or
comply willingly with it.”).
54
Cf. Fearon, supra note 53, at 45 (“[D]iscussion allows people to express diverse intensities of preference ... any given voting
procedure ... will rarely if ever allow individuals to send as many ‘messages’ characterizing their preferences or private
information as free discussion would.”).
55
“Mr. Gerry finding that the loss of the question had proceeded from an objection with some, to the proposed assessment of direct
taxes on the inhabitants of the States ... moved his proposition again, but so varied as to authorise the assessment on the States . ...
On this varied question, it passed in the affirmative.” Notes, supra note 1, at 284-85 (July 13, 1787).
56
See id. at 24 (discussing “[t]he appointment of a Committee, consisting of Messrs Wythe, Hamilton & C. Pinckney, on the motion
of Mr. C. Pinckney, to prepare the standing rules & orders was the only remaining step taken on this day,” May 25, 1787).
57
See id. at 24-27 (discussing May 28, 1787).
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58
See id. at 27-28 (discussing May 29, 1787).
59
On July 23, Mr. Randolph mentioned the “progress ... which every member will find to have taken place in his own [mind], if he
will compare his present opinions with those brought with him into the Convention.” Notes, supra note 1, at 349 (Edmund
Randolph, July 23, 1787).
60
Letter from James Madison to James Monroe (June 10, 1787), in Supplement to Farrand, supra note 4, at 67.
61
It is interesting that the confidentiality rule was the only procedural rule that Washington noted in particular in his diary on the
night the initial procedural rules were established. See id. at 25 (Washington’s diary, May 28, 1787).
62
The Articles of Confederation Assembly was required to keep journals and publish them, except for secret matters. See Notes,
supra note 1, at 434.
63
Cf. Beginnings, supra note 2, at 378.
64
“We are here, & I believe every where, all Impatience to know Something of your conventional Deliberations. If you cannot tell
us what you are doing, you might at least give us some Information of what you are not doing. This wd. afford a Clue for political
Conjecture, and perhaps be sufficient to satisfy present Impatience.” Letter from Reverend James Madison to James Madison
(Aug. 1, 1787), in The Papers of James Madison, supra note 14, at 120-21. “Nothing can exceed the universal anxiety for the
event of the Meeting here. Reports and conjectures abound concerning the nature of the plan which is to be proposed. The public
however is certainly in the dark with regard to it. The Convention is equally in the dark as to the reception wch. may be given to it
on its publication.” Letter from James Madison to Thomas Jefferson (Sept. 6, 1787), in id., at 164.
65
For example, Thomas Jefferson, who was in Paris at the time, wrote that he was “sorry they began their deliberations by so
abominable a precedent as that of tying up the tongues of their members. Nothing can justify this example but the innocence of
their intentions, & ignorance of the value of public discussions.” Thomas Jefferson in The Great Rehearsal, supra note 5, at 28.
But see letter from James Madison to Thomas Jefferson (July 18, 1787), in 10 The Papers of James Madison, supra note 14, at
105 (“The public mind is very impatient for the event, and various reports are circulating which tend to inflame curiosity. I do not
learn however that any discontent is expressed at the concealment ....”).
66
The correspondence of most of the Framers shows great self-restraint. For example, on May 30, Robert Burton wrote to John
Blount that “the Convention sitting here are so very private that there is no telling what business they are on ....” Letter from
Robert Burton to John Blount (May 30, 1787), in Supplement to Farrand, supra note 4, at 35. Rufus King wrote to Theodore
Dedgwick on June 10 that “I am precluded from communicating, even confidentially, any particulars of the proceedings.” Letter
from Rufus King to Theodore Dedgwick (June 10, 1787), in Supplement to Farrand, supra note 4, at 68. However, not all of the
participants showed similar self-restraint. For example, on June 3, Nathaniel Gorham wrote Nathan Dane that “I do not know that
I am at liberty to mention in any manner what the Convention has done--but to you in confidence I can say that they have agreed I
believe unanimously that there ought to be a National Legislative Executive & Judiciary.” Letter from Nathaniel Gorham to
Nathan Dane (June 3, 1787), in id. at 46-47.
67
Notes, supra note 1, at 27 (Pierce Butler, May 28, 1787).
68
“Whereupon it was ordered that these motions be referred to the consideration of the Committee appointed to draw up the
standing rules and that the Committee make report thereon.” Id. (May 28, 1787).
69
Id. at 27 (May 29, 1787).
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70
See Letter from James Madison to James Monroe (June 10, 1787), in Supplement to Farrand, supra note 4, at 67.
71
Delegates did not want “to be bound by the expectations and disappointments which publicity might rouse in their constituents.
Before news of temporary decisions could reach Georgia or New Hampshire, they could have been changed in Philadelphia.
Antagonisms created here or there by wrong decisions, later rescinded, might sullenly persist, no matter what the eventual result.
Particular states might feel bound to support the proposals of their delegates, and to oppose those made be delegates from rival
states.” The Great Rehearsal, supra note 5, at 29. James Madison explained that the rule “was thought expedient in order to secure
unbiassed discussion within doors, and to prevent misconceptions & misconstructions without ....” Letter from James Madison to
Thomas Jefferson (June 6, 1787), in 10 The Papers of James Madison, supra note 14, at 29.
72
Letter from George Washington to James Madison (Oct. 10, 1787), in Origins of the American Constitution 56 (Michael Kammen
ed., 1986) (discussing confidentiality and Congress’ passage of the Constitution).
73
Cf. Klaus L. Aurisch, The Art of Preparing a Mulilateral Conference, in Negotiation Theory and Practice, supra note 25, at 396
(transparent public negotiations have made negotiators’ jobs more difficult because “[e]ach move has to qualify both as a good
move in the negotiating process and as a good public statement.”). George Mason wrote that he thought the rule was “a necessary
precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its
first crude and undigested shape, and after it shall have been properly matured and arranged.” The Great Rehearsal, supra note 5,
at 28 (George Mason, June 1, 1787).
74
Id. (quoting James Madison). For example, “Mr. Randolph agreed that Mr. Williamson’s proposition should stand in the place of
his.” Notes, supra note 1, at 267 (July 11, 1787).
75
Some researchers have found modern-day “sunshine laws” meant to open up government deliberations to public scrutiny have
had the unfortunate consequence of hindering full and honest deliberation. Susskind and Cruikshank wrote: “None of the many
reformers who tinkered with our governmental structure suspected that more openness and accountability in government might
actually reduce the likelihood that policies would be applied more wisely, respecting the unique aspects of each application.
Nevertheless, that has been the effect.” Susskind & Cruikshank, supra note 17, at 37.
76
See interview with Beatriz Terrazas, Neiman Fellow, Harvard University (Dec. 1998). One could argue that current Congressional
debates about welfare are often proxies for debates about race and poverty. Perhaps if representatives on all sides of the debate
were more explicit, their underlying concerns and beliefs could be addressed more directly.
77
Notes, supra note 1, at 106 (June 12, 1787).
78
Id. at 240 (Robert Morris, July 5, 1787).
79
Col. George Mason worried that specific information on votes would “furnish handles to the adversaries of the Result of the
Meeting.” Id. at 25 (May 28, 1787).
80
Id. at 654 (Benjamin Franklin, Sept. 7, 1787).
81
Supplement to Farrand, supra note 4, at 79 (quoting Rufus King).
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82
See Notes, supra note 1, at 659 (Sept. 7, 1787).
83
See 1787: Drafting the U.S. Constitution, supra note 22, at 5.
84
Massachusetts recently acknowledged these tensions when it adopted an “ethical” rule for its confidential court-affiliated
mediations. Mediators now have an “ethical” responsibility to take the interests of non-participants into account. “A neutral
should consider and encourage the parties to consider the interests of persons--especially children--who are not participating in
the process but who are affected by actual or potential agreements.” Mass. S.J.C. Rule 1:18, Uniform Rules on Dispute
Resolution, Rule 9 (1999) (ethical standards).
85
Notes, supra note 1, at 272 (July 11, 1787).
86
Id. at 433 (Aug. 10, 1787).
87
Id. at 434 (James Wilson, Aug. 11, 1787).
88
See generally The Federalist (James Madison).
89
Especially after a general ratification plan was accepted, delegates often discussed whether “the people” would be willing to ratify
the Constitution with whatever clause they were then discussing. For example, “[t] he people have been long accustomed to this
right in various parts of America, and will never allow it to be abridged. We must consult their rooted prejudices if we expect
their concurrence in our propositions.” Notes, supra note 1, at 406 (Nathaniel Ghorum, Aug. 8, 1787) (discussing whether
non-landholders should be allowed to vote).
90
Id. at 239 (July 5, 1787).
91
Cf. letter from Alexander Hamilton to Bayard (Dec. 27, 1800), in Works of Alexander Hamilton 417 (Henry Cabot Lodge ed.,
1904).
92
Notes, supra note 1, at 427 (Benjamin Franklin, Aug. 10, 1787).
93
Id. at 40 (George Mason, May 31, 1787).
94
This can be observed by comparing the convention discussions with the somewhat more cautiously framed arguments raised in
The Federalist Papers. See generally The Federalist, supra note 88.
95
Notes, supra note 1, at 39 (Roger Sherman, May 31, 1787).
96
Id. at 39 (Elbridge Gerry, May 31, 1787).
97
Id. at 39-40 (George Mason, May 31, 1787).
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98
See supra note 93 and accompanying text.
99
“It is of great consequence that we shd not depress the virtue & public spirit of our common people; of which they displayed a
great deal during the war, and which contributed principally to the favorable issue of it.” Notes, supra note 1, at 404 (Benjamin
Franklin, Aug. 7, 1787).
100 Id. at 426 (Benjamin Franklin, Aug. 10, 1787).
101 “In 1830 Madison believed that no constitution would ever have been adopted if the Convention debates had been public.” The
Great Rehearsal, supra note 5, at 28.
102 Conflict Management Group, Facilitated Joint Brainstorming: A Useful Tool for Dealing with Conflict 5 (Harvard Project on
Negotiation, 1996) (unpublished manuscript, on file with author).
103 Id.
104 Notes, supra note 1, at 25 (Rufus King, May 28, 1787).
105 Id. at 25 (George Mason, May 28, 1787).
106 “Vote swapping” occurs when participants swap their support for issues that are less important to them for the support of other
participants on the issues that are more important to them. This helps take account of participants’ strengths of preferences.
107 Id. at 27 (Richard Dobbs Spaight, May 28, 1787).
108 Notes, supra note 1, at 28 (Committee on Standing Rules and Orders, May 29, 1787).
109 “On the question to agree to the Constitution, as amended. All the States ay.” Id. at 652 (Sept. 15, 1787). Note, however, that
other options for decision rules were at times threatened or considered.
110 See Sarah McKearnan & David Fairman, The Consensus-Building Handbook (1999) (“Groups that adopt a unanimity rule risk
being held hostage to their most demanding and inflexible member(s).”). Cf. Bazerman & Neale, supra note 30, at 134-35
(“Majority rule is often used because it’s easy and efficient .... [H]owever ... [it] fails to recognize the strengths of individual
preferences.... To reach a unanimous agreement, each party has to make trade-offs [and] to learn other members’ preferences and
find ways to expand the pie of resources to accommodate them.”). However, the combination of rules did not allow the Framers to
fully avoid the problem of hold-outs that arises in conjunction with the use of unanimity. In the end, although all states who
remained agreed, not all individuals who remained were willing to sign the Constitution in support. See Notes, supra note 1, at
659 (Sept. 17, 1787) (refusing to sign were “Mr. Randoph, Mr. Mason, and Mr. Gerry ....”). Many others had threatened not to
support the Constitution at earlier points, including Pinkney, who threatened that “South Carolina can never receive the plan if it
prohibits slavery.” Id. at 503 (Charles Pinkney, Aug. 21, 1787). Perhaps some of their experiences within the Convention led the
Framers to avoid choosing unanimity as the rule for the Constitution’s ratification. Cf. id. at 350 (Nathaniel Ghorum, July 23,
1787).
111 10 The Founders’ Constitution 189 (Philip Kurland et al. eds., 1987) (Edmund Randolph, Mar. 27, 1787).
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112 Id. at 190 (James Madison, Apr. 8, 1787).
113 Notes, supra note 1, at 409 (Rufus King, Aug. 8, 1787).
114 Elbridge Gerry “described the painful feelings of his situation, and the embarrassment under which he rose to offer any further
observations .... Whilst the plan was depending, he had treated it with all the freedom he thought it deserved. He now felt himself
bound ....” Id. at 657-58 (Sept. 17, 1787).
115 “Mr. Gerry did not expect to see this point which had undergone full discussion revived again.” Id. at 338 (Elbridge Gerry, July
21, 1787). “Col. Mason was unwilling to travel over this ground again. To strike out the section, was to unhinge the compromise
of which it made a part.” Id. at 412 (George Mason, Aug. 8, 1787). “Mr. Rutlidge was strenuous agst postponing; and complained
much of the tediousness of the proceedings.” Id. at 465 (John Rutlidge, Aug. 15, 1787).
116 See, e.g., id. at 49 (June 1, 1787) (when the term for the executive was decided to be seven years); id. at 329 (July 19, 1787)
(when the term for the executive was agreed to be six years).
117 Cf. The Great Rehearsal, supra note 5, at 56.
118 Notes, supra note 1, at 26.
119 However, the attendance rules also realistically accepted that full and constant attendance would not always be possible: “A
House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater
number of these which shall be fully represented: but a less number than seven may adjourn from day to day.” Id. at 25 (May 28,
1787).
120 Id. at 27. Unfortunately, many members were in fact kept away for one reason or another.
121 Id.
122 Madison mentioned an application of this rule in a letter to his father, when he wrote that “an Adjournment took place on
Thursday last until Monday week, and that a Committee is to be at work in the mean time.” Letter from James Madison to James
Madison, Sr. (July 28, 1787), in 10 The Papers of James Madison, supra note 14, at 118-19.
123 Notes, supra note 1, at 26 (May 28, 1787).
124 Id.
125 Id. at 335 (Robert Morris, July 20, 1787).
126 Robert Morris from Pennsylvania “proposed that George Washington Esq. late Commander in chief for president of the
Convention.” Id. at 23 (May 14, 1787). The motion was immediately seconded by John Rutlidge from South Carolina,
“expressing his confidence that the choice would be unanimous, and observing that the presence of General Washington forbade
any observations on the occasion which might otherwise be proper.” Id.
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127 Washington did not always perform the facilitator role himself, sometimes the Convention would turn itself into a Committee of
the Whole, and Nathaniel Gorham from Massachusetts would facilitate as “Chair of the Committee,” while Washington would
silently join the Virginia delegation, voting with them. Cf. The Great Rehearsal, supra note 5, at 32, 51; Glenn A. Phelps, George
Washington and American Constitutionalism 102 (1993). The Committee of the Whole “was a parliamentary device, then familiar
to all American deliberative bodies, for keeping discussions as informal as possible and for leaving certain decisions still subject
to review by the Convention, even when as here the committee and the Convention were in fact the same.” Id. at 51-52. Note
however, that the Committee of the Whole was infrequently used. Once, when a delegate proposed its use, Ghorum, who chaired
the committee, objected to its use because of its likelihood of producing “unnecessary delay.” Id. at 396 (Aug. 7, 1787).
128 The decision was unanimous. Richard Dobbs Spaight wrote, on May 30, 1787, that “Genl. Washington was of course
unanimously elected President.” Letter from Richard Dobbs Spaight to John Gray Blount (May 30, 1787), in Supplement to
Farrand, supra note 4, at 34 (quoting William Pierce).
129 Georgia delegate William Pierce wrote of him that “[l]ike Gustavus Vasa, he may be said to be the deliverer of his Country;--like
Peter the great he appears as the politician and the States-man; and like Cincinnatus he returned to his farm perfectly contented
with being only a plain Citizen, after enjoying the highest honor of the Confederacy,--and now only seeks for the approbation of
his Countrymen by being virtuous and useful.” 1787: Drafting the U.S. Constitution, supra note 22, at 34 (quoting William
Pierce).
130 See Adrienne Koch ed., Notes, supra note 1, at xii (“Washington accepted the role of presiding officer of the Convention, he
provided the country and the delegates assurance that the Convention was to be the decisive effort in winning the self-government
promised throughout the Revolutionary struggle.”). Cf. letter from William Samuel Johnson to Samuel William Johnson (May 30,
1787), in Supplement to Farrand, supra note 4, at 35 (making a point of mentioning Washington was presiding over the affair).
William Pierce noted: “Having conducted these States to independence and peace, he now appears to assist in framing a
Government to make the People happy.” 1787: Drafting the U.S. Constitution, supra note 22, at 34.
131 “[T]here is every reason to believe that if the new Constitution is adopted ... General Washington will be the Chief.” Letter from
Alexander Hamilton to Mr. Duche (Sept. 8, 1787), in Supplement to Farrand, supra note 4, at 263.
132 Letter from George Washington to James Madison (Mar. 31, 1787), in The Founders’ Constitution, supra note 111, at 189.
133 Notes, supra note 1, at 24.
134 Note, however, that Washington did not always refrain from sharing his opinion with his colleagues when the Convention was not
formally in session, and he did vote with the Virginia delegation. See Supplement to Farrand, supra note 4, at 64-67.
135 “Mr. Gov Morris objected to it. The entry of the proceedings of the Convention belonged to the Secretary as their impartial
r
officer. A committee might have an interest and bias in molding the entry according to their opinions and wishes.” Notes, supra
note 1, at 28. The proposal was voted down 5 to 4. In stark contrast, the United States Congress has allowed its minutes to be
altered.
136 The issue of the number of represented per representative was raised. See id.
137 Id. at 655 (emphasis added).
138 One wonders if the President’s elevated status derived in part from Hamilton’s presence on the Committee.
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139 Notes, supra note 1, at 25. By requiring the minutes of the preceding day to be read, this rule helped ensure discussions would
start up where they left off--aiding the progress of the discussion.
140 Id. at 27.
141 Id. at 25.
142 My interpretation is that the “he” who could not be interrupted was the member “speaking.” An alternative, and I believe less
persuasive, interpretation would be that delegates needed only be quiet and attentive when the President was speaking.
143 John Gastil, Democracy in Small Groups 31 (1993).
144 Notes, supra note 1, at 26.
145 Washington took an unknown member to task for negligently dropping his secret copy of the Virginia plan. Although everyone
was alarmed by Washington’s stern admonishment, no one seemed resentful. Cf. The Great Rehearsal, supra note 5, at 40.
146 William Pierce wrote of Franklin that he is “well known to be the greatest phylosopher of the present age;--all the operations of
nature he seems to understand,--the very heavens obey him, and the Clouds yield up their Lightning to be imprisoned in his rod ....
He is 82 years old, and possesses an active mind equal to a youth of 25 years of age.” 1787: Drafting the U.S. Constitution, supra
note 22, at 28 (quoting William Pierce). An example of a time when those in the Convention showed Franklin respect, even when
disagreeing with his substantive ideas, was when the resolution that the national legislature ought to consist of two branches was
agreed to without debate or dissent “except that of Pennsylvania, given probably from complaisance to Docr Franklin who was
understood to be partial to a single House of Legislation.” Notes, supra note 1, at 39.
147 Hamilton proposed that the executive should be for life, the English model for an executive being “the only good one on this
subject.” Id. at 135-36 (Alexander Hamilton, June 18, 1787).
148 Id. at 55.
149 Id.
150 Notes, supra note 1, at 24.
151 Franklin and his fellow members referred to this club as the “Junto.”
152 See Benjamin Franklin, The Autobiography of Benjamin Franklin 52 (1996).
153 Id.
154 Franklin’s ideas about deliberation are similar to some of those more recently expressed by Lawrence Susskind and his colleagues
who advise: “Express concerns in an unconditionally constructive manner. It is important to maintain a problem-solving
orientation, even in the face of strong differences and personal antagonism .... Those who disagree with the direction in which the
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discussion is headed should always explain the basis for their disagreement.” Lawrence Susskind et al., The Consensus Building
Handbook: A Comprehensive Guide to Reaching Agreement 27 (1999).
155 Cf. Roger Fisher et al., supra note 36.
156 Franklin, supra note 152, at 78. See also Susskind et al., supra note 154, at 28 (“Participants in every consensus building process
should be instructed to ‘disagree without being disagreeable.’ They should also avoid attacking the motives and character of
others. Guidelines of this sort should probably be included in the group’s written ground rules.”).
157 In his Autobiography, Franklin wrote of his experience creating the first lending library in America. He quickly realized that
others were reluctant to join in because they thought he was just trying to improve his own reputation. So, he explained, “I
therefore put myself as much as I could out of sight, and stated it as a scheme of a number of friends, who had requested me to go
about and propose it to such as they thought lovers of reading. In this way my affair went on more smoothly ....” Franklin, supra
note 152, at 67-68.
158 Id. at 78 (emphasis added).
159 Id. at 110.
160 See id. at 78 (“[F]or I was but a bad speaker, never eloquent, subject to much hesitation in my choice of words, hardly correct in
language, and yet I generally carried my points.”). His peers agreed about his speaking abilities. William Pierce of Georgia
recorded in his Notes that Franklin “does not shine much in public Council ....” 1787: Drafting the U.S. Constitution, supra note
22, at 31 (quoting William Pierce).
161 Luckily, we have fairly more accurate records of what he communicated to the group, since he often wrote out his speeches, had
someone else read them, and then gave them to Madison for his recording. See, e.g., Notes, supra note 1, at 51. See also id. at 18
(“The speeches of Doctor Franklin, excepting a few brief ones, were copied from the written ones read to the Convention by his
colleague, Mr. Wilson, it being inconvenient to the Doctor to remain long on his feet.”).
162 One of the questions that members of Franklin’s Junto group were supposed to ask themselves before every meeting was: “Do
you see any thing amiss in the present customs or proceedings of the Junto, which might be amended?” Rules for a Club
Established for Mutual Improvement (1728), in 2 The Writings of Benjamin Franklin 90 (Albert Henry Smyth ed.,1907).
163 Notes, supra note 1, at 99.
164 Cf. The Great Rehearsal, supra note 5, at 77.
165 Notes, supra note 1, at 227 (concerning the representation dilemma).
166 See id. at 232 (Pinkney “liked the motion of Docr Franklin .... Some compromise seemed to be necessary: the States being exactly
divided on the question for an equality of votes in the 2d branch. He proposed that a Committee consisting of a member from each
State should be appointed to devise & report some compromise.”).
167 See The Great Rehearsal, supra note 5, at 111.
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168 See id. at 96.
169 Notes, supra note 1, at 209 (Benjamin Franklin, June 28, 1787).
170 See id. at 210.
171 Id.
172 Franklin, supra note 152, at 18.
173 Notes, supra note 1, at 210 (Benjamin Franklin, June 28, 1787).
174 Cf. Franklin, supra note 152, at 50-51.
175 See The Great Rehearsal, supra note 5, at 102.
176 Notes, supra note 1, at 45 (Benjamin Franklin, June 1, 1787).
177 For example, “Mr. Randolph strenuously opposed a unity in the Executive magistracy, He regarded it as the foetus of monarchy ...
The Executive ought to be independent. It ought therefore in order to support its independence to consist of more than one.” Id. at
46 (Edmund Randolph, June 1, 1787).
178 “Mr. Madison thought it would be proper, before a choice shd be made between a unity and a plurality in the Executive, to fix the
extent of the Executive ....” Id. at 47 (James Madison, June 1, 1787).
179 Id. at 67. See also Susskind et al., supra note 154, at 28 (“The key to creating value is to invent options for mutual gain. This is
best done by separating inventing from committing--engaging in cooperative behaviors that ‘make the pie larger’ before giving in
to competitive pressures ‘to get the most for one’s self.” ’).
180 Notes, supra note 1, at 248 (Benjamin Franklin, July 6, 1787).
181 I do not discus shifting coalitions to a great extent in this Article. For a good discussion of these issues at the Convention, see
generally Jillson, supra note 10.
182 1787: Drafting the U.S. Constitution, supra note 22, at 35 (quoting William Pierce).
183 “By determining the order in which issues will be raised, discussed, and decided in the negotiation process, agendas are essential
to efficient decision making.” Bazerman & Neale, supra note 30, at 136.
184 C.R. Plott & M.E. Levine, A Model of Agenda Influence on Committee Decisions, 68 Am. Econ. Rev. 146-60 (1978), cited in
Communication and Group Decision Making, supra note 9, at 387.
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185 David A. Lax & James K. Sebenius, Thinking Coalitionally: Party Arithmetic, Process Opportunism, and Strategic Sequencing, in
Negotiation Analysis 163-64 (H. Peyton Young ed., 1991).
186 Id. (“Often actions can be understood as a contest for what the game itself will be”).
187 See Notes, supra note 1, at 239 (James Madison, July 5, 1787) (“He conceived that the Convention was reduced to the alternative
of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U.S. or of
displeasing these by justly gratifying the larger States and the majority of the people. He could not himself hesitate as to the
option he ought to make. The Convention with justice & the majority of the people on their side, had nothing to fear. With
injustice and the minority on their side they had every thing to fear.”).
188 This impact can be seen by comparing some of his letters to friends written before the Convention to the final Constitution. See,
e.g., Letter from James Madison to George Washington (Apr. 16, 1787), in Ralph Ketcham, The Anti-Federalist Papers and the
Constitutional Convention Debates 32 (1986).
189 In college, at Princeton, Madison studied human nature, government, and ethics. See Notes, supra note 1, at xiii.
190 See id. at xvi.
191 See James Madison, Notes on Ancient and Modern Confederacies, in 9 The Papers of James Madison, supra note 14, at 3-24.
192 See Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 The Founders’ Constitution, supra note 111, at 3-24.
193 See letter from James Madison to George Washington (Apr. 16, 1787), in Ketcham, supra note 188, at 32 (“Having ... formed in
my mind some outlines of a new system, I take the liberty of submitting them without apology, to your eye.”).
194 Id.
195 Cf. Collier & Collier, supra note 21, at 46.
196 See Jillson, supra note 10, at 46.
197 See id. at 47.
198 Madison’s Notes show that delegates from particular states were sometimes unable to provide effective votes because they were
too divided amongst themselves to act as a voting unit. See e.g. Notes, supra note 1, at 36, 41, 70, 92 & 94. The New York
delegates in particular, undermined each other during deliberations. Before Hamilton presented his nationalistic plan, he noted
that he “had been hitherto silent on the business before the Convention, ... partly from his delicate situation with respect to his
own State, to whose sentiments as expressed by his Colleagues, he could by no means accede. The crisis however which now
marked our affairs, was too serious to permit any scruples whatever to prevail over the duty imposed on every man to contribute
his efforts for the public safety & happiness.” Id. at 129 (Alexander Hamilton, June 18, 1787) (emphasis added). Because
Hamilton was generally outvoted by his fellow New York delegates, he left the Convention for awhile, only returning after the
other New York delegates had left. See Collier & Collier, supra note 21, at 57.
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199 “He then proceeded to enumerate the defects: 1. That the confederation produced no security against foreign invasion ... 2. That
the federal government could not check the quarrels between states....” Notes, supra note 1, at 29 (Edmund Randolph, May 29,
1787).
200 “The Character of such a government out to secure 1. against foreign invasion: 2. Against dissentions between members of the
Union ....” Id. (Edmund Randolph, May 29, 1787).
201 See id. at 30-33 (The Virginia Plan).
202 See The Great Rehearsal, supra note 5, at 18.
203 Ironically, Randolph was one of the few men who refused to sign the final version of the Constitution.
204 For example, on May 31, 1787, resolutions 3-6 were discussed. See Notes, supra note 1, at 38-45. Note, however, that they did
sometimes postpone consideration of particular propositions. See, e.g., id. at 34 (May 30, 1787).
205 See, e.g., id. at 115-17 (discussing proceedings of June 13, 1787).
206 Bazerman and Neale note: “Typically, when agendas are followed strictly, issues are considered individually and not raised again
once the group has moved on to a new topic. This may limit the exchange of information about preferences among group
members and make it harder to identify new issues and find trade-offs. This doesn’t matter in purely cooperative or competitive
negotiations because integrative decisions aren’t possible. In mixed-motive negotiation, however, groups using an agenda usually
reach less integrative agreements than groups not using one because the agenda forces the group to consider the dispute on an
issue-by-issue basis.” Bazerman & Neale, supra note 30, at 136.
207 “Mr Patterson, observed to the Convention that it was the wish of several deputations, particularly that of N. Jersey, that further
time might be allowed them to contemplate the plan reported from the Committee of the Whole, and to digest one purely federal,
and contradistinguished from the reported plan.” Notes, supra note 1, at 117 (William Patterson, June 14, 1787).
208 See id. at 118-21 (The New Jersey Plan and William Patterson, June 15, 1787). “After some little discussion of the most proper
mode of giving it a fair deliberation it was agreed that it should be referred to a Committee of the whole, and that in order to place
the two plans in due comparison, the other should be recommitted.” Id. at 118.
209 “Mr. Wilson entered into a contrast of the principal points of the two plans ....” Notes, supra note 1, at 124 (James Wilson, June
16, 1787).
210 See generally id. at 121-29 (discussing proceedings of June 16, 1787).
211 “[Hamilton felt obliged] to declare himself unfriendly to both plans. He was particularly opposed to that of N. Jersey, being fully
convinced, that no amendment of the Confederation, leaving the States in possession of their Sovereignty could possibly answer
the purpose.” Id. at 129 (Alexander Hamilton, June 18, 1787).
212 Id. at 134 (Alexander Hamilton, June 18, 1787).
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213 Notes, supra note 1, at 136.
214 Cf. id. at 140-48 (James Madison, June 19, 1787).
215 “On the question moved by Mr King whether the Committee should rise & Mr Randolphs propositions be re-reported without
alteration, which was in fact a question whether Mr R’s should be adhered to as preferable to those of Mr Patterson [the States
voted: seven in favor, three opposed, and one divided].” Id. at 148 (June 19, 1787).
216 Note that besides using large-scale option packages for agenda setting, option package link-ups of a few issues can be a very
useful means of getting people with different strengths of preference on different issues to reach a general consensus. The Framers
frequently used this technique. For example, “Mr. Sherman was for the question on the whole at once. It was he said a
conciliatory plan, it had been considered in all its parts, a great deal of time had been spent on it, and if any part should now be
altered, it would be necessary to go over the whole ground again.” Id. at 289 (Roger Sherman, July 14, 1787).
217 After a motion was made that the national legislature can legislate in all cases “to which the separate States are incompetent,”
Pierce Butler called “for some explanation of the extent of this power: particularly of the word incompetent ....” Notes, supra note
1, at 298 (Pierce Butler, July 16, 1787). Nathaniel Ghoram’s comment was made in response to Butler’s comment.
218 Id. at 252 (James Wilson, July 6, 1787).
219 An example of circling back to fill in a blank occurred on June 4 when, “[o]n a question for enabling two thirds of each branch of
the Legislature to overrule the revisionary check: it passed in the affirmative sub silentio; and was inserted in the blank of Mr.
Gerry’s motion.” Id. at 66 (June 4, 1787).
220 Id. at 50 (James Wilson, June 2, 1787) (leaving the number of districts to be determined later).
221 Notes, supra note 1, at 68 (James Madison, June 5, 1787).
222 See id. at 298 (Nathaniel Gorham, July 16, 1787).
223 Id. at 69 (June 5, 1787).
224 Id. at 36 (James Madison, May 30, 1787).
225 See interview with Gregory Janicik, Assistant Professor of Management and Organizational Behavior, Leonard N. Stern School
of Business, New York University (Feb. 2000).
226 Notes, supra note 1, at 232 (Roger Sherman, July 2, 1787).
227 See id. at 26 (May 28, 1787).
228 In a number of instances, however, the delegates decided to choose committee members in just such a manner. The question
became one for debate. See id. at 355. “Shall the Come consist of 10 members one from each State prest? All the States were no,
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except Delaware ay. Shall it consist of 7. Members ... The question being lost by an equal division of Votes. It was agreed nemcon- that the Comttee consist of 5 members, to be appointed tomorrow.” Id. at 533 (July 23, 1787). Regardless of whether they
were chosen by state, they were still chosen by ballot by all of the delegates. See id. “These several propositions were referred,
nem: con: to a Committee composed of a member from each State.” Id. (Aug. 25, 1787).
229 Cf. Jillson, supra note 10, at 24.
230 See Notes, supra note 1, at 232 (Charles Pinkney, July 2, 1787) (Pinkney “liked the motion of Doc Franklin .... Some compromise
r
seemed to be necessary: the States being exactly divided on the question for an equality of votes in the 2 d branch. He proposed
that a Committee consisting of a member from each State should be appointed to devise & report some compromise.”). “Mr.
Sherman & Mr. Elseworth moved to postpone the Question on the Report from the Committee of a member from each State, in
order to wait for the Report from the Come of 5 last appointed.” Id. at 256 (July 7, 1787) (discussing the committee of 5 proposing
a ratio of representatives to number of inhabitants).
231 Id. at 232 (Roger Sherman, July 2, 1787).
232 Id. at 236 (Hugh Williamson, July 2, 1787).
233 Id. See also id. at 293 (Caleb Strong, July 14, 1787) (“The Convention had been much divided in opinion. In order to avoid the
consequences of it, an accomodation had been proposed. A committee had been appointed ....”).
234 “[A]s for the Commitm . Something must be done, or we shall disappoint not only America, but the whole world.” Notes, supra
t
note 1, at 236 (Elbridge Gerry, July 2, 1787).
235 Id. at 232 (Charles Pinkney, July 2, 1787).
236 See id. at 236 (James Madison, July 2, 1787) (“Any scheme of compromise that could be proposed in the Committee might as
easily be proposed in the House.”).
237 Cf. id. at 238 (James Madison, July 5, 1787).
238 Cf. Notes, supra note 1, at 237-38. “Accomodation was the object of the House in the appointment of the Committee; and of the
Committee in the Report they had made. And however liable the Report might be to objections, he thought it preferable to an
appeal to the world by the different sides, as had been talked of by some Gentlemen.” Id. at 243 (George Mason, July 5, 1787).
239 The Framers generally discussed the reports of their committees. At the return of this committee, Ghorum observed “that as the
report consisted of propositions mutually conditional he wished to hear some explanations touching the grounds on which the
conditions were estimated.” Id. at 238 (Nathaniel Ghorum, July 5, 1787).
240 Id. at 362 (July 24, 1787).
241 See id. at 385-96 (Aug. 6, 1787). See generally John C. Hueston, Altering the Course of the Constitutional Convention: The Role
of the Committee of Detail in Establishing the Balance of State and Federal Powers, 110 Yale L.J. 765 (1990).
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242 “Mr. Madison proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the
modification might be made better.” Notes, supra note 1, at 518 (James Madison, Aug. 23, 1787).
243 See, e.g., id. at 236 (James Madison, July 4, 1787).
244 Cf. id. at 546 (James Madison, Aug. 29, 1787).
245 Letter from Benjamin Franklin to Thomas Jordon, in The Great Rehearsal, supra note 5, at 13.
246 Ancona et al., supra note 32, at 168.
247 The India Queen was a tavern near Chestnut Street. See The Great Rehearsal, supra note 5, at 19.
248 See Notes, supra note 1, at 117 (William Patterson, June 14, 1787).
249 Id.
250 Id. at 301 (James Madison, July 17, 1787).
251 Id.
252 Hamilton ended up leaving the Convention for awhile, as his situation within his own delegation sometimes led him to feel
powerless. See letter from Alexander Hamilton to George Washington (July 3, 1787), in Selected Writings and Speeches of
Alexander Hamilton 122 (Morton J. Frisch ed., 1985) (“I shall of necessity remain here ten or twelve days; if I have reason to
believe that my attendance at Philadelphia will not be mere waste of time, I shall after that period rejoin the Convention.”). Even
while he was away, however, he did not suspend his efforts to influence the Convention outcome through private communications
and persuasion. See id.
253 See The Great Rehearsal, supra note 5, at 15.
254 “These appearances though they will not warrant a conclusion that the people are yet ripe for such a plan as I advocate, yet serve
to prove that there is no reason to despair of their adopting one equally energetic, if the Convention should think proper to
propose it. They serve to prove that we ought not to allow too much weight to objections drawn from the supposed repugnancy of
the people to an efficient constitution.” Letter from Alexander Hamilton to George Washington, supra note 252, at 122.
255 Id.
256 Letter from William Blount to John Gray Blount (June 19, 1787), in Supplement to Farrand, supra note 4, at 175.
257 Notes, supra note 1, at 236 (James Wilson) (discussing the decision rule for the Committee for discussing representation in the
Senate).
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258 “Whatever decision rule the group chooses can affect both the complexity of the interaction and the distribution of outcomes.”
Bazerman & Neale, supra note 30, at 134. Cf. Howard Raiffa, The Art and Science of Negotiation 327-34 (1982).
259 “A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the
greater number of these which shall be fully represented: but a less number than seven may adjourn from day to day.” Notes,
supra note 1, at 24 (May 28, 1787).
260 Id. at 25 (James Madison, May 28, 1787).
261 “Several of them supposing that no good Governn could or would be built on that foundation, and that as a division of the
t
Convention into two opinions was unavoidable; it would be better that the side comprising the principal States, and a majority of
the people of America, should propose a scheme of Govt to the States, than that a scheme should be proposed on the other side
....” Id. at 301 (July 17, 1787) (in an outside meeting of the large states).
262 Id. at 240 (James Madison, July 5, 1787).
263 Notes, supra note 1, at 123 (William Patterson, June 16, 1787).
264 Id. at 215 (Alexander Hamilton, June 29, 1787).
265 “Mr. Brearly moved that the Presid write to the Executive of N. Hamshire, informing it that the business depending before the
t
Convention was of such a nature as to require the immediate attendance of the deputies of that State. In support of his motion he
observed that the difficulties of the subject and the diversity of opinions called for all the assistance we could possibly obtain. It
was well understood that the object was to add N. Hamshire to the n o of States opposed to the doctrine of proportional
representation, which it was presumed from her relative size she must be adverse to.” Id. at 219 (June 30, 1787).
266 “He entreated the gentlemen representing the small States to renounce a principle w was confessedly unjust, which c never be
ch
d
admitted, & if admitted must infuse mortality into a Constitution which we wished to last forever. He prayed them to ponder well
the consequences of suffering the Confederacy to go to pieces.” Id. at 214 (James Madison, June 29, 1787).
267 “What would be the situation of Delaware (for these things he found must be spoken out, & it might as well be done first as last)
what wd be the situation of Delaware in case of a separation of the States? Would she not lie at the mercy of Pennsylvania? would
not her true interest lie in being consolidated with her, and ought she not now to wish for such a union with Pa under one Gov t as
will put it out of the power of Pena to oppress her?” Notes, supra note 1, at 212 (Nathaniel Ghorum, June 29, 1787).
268 Madison’s description of the final meeting of the large states to discuss the issue has a bitter tone. He noted that the compromise
was decided “by a bare majority of States and by a minority of the people of the U. States.” Id. 301-02 (James Madison, July 17,
1787).
269 Id. at 123 (William Patterson, June 16, 1787).
270 For example, this is standard procedure for the Harvard Mediation Program.
271 Ancona et al., supra note 32, at 168.
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272 Notes, supra note 1, at 35 (General Pinkney, May 30, 1787).
273 Id. at 35 (Elbridge Gerry, May 30, 1787).
274 Id. at 95 (William Patterson, June 9, 1787).
275 Cf. id. at 121-29 (June 16, 1787). But see id. at 130 (Alexander Hamilton, June 18, 1787) (“[W]e owed it to our Country, to do on
this emergency whatever we should deem essential to its happiness.... To rely on & propose any plan not adequate to the
[exigencies of the Union], merely because it was not clearly within our powers, would be to sacrifice the means to the end.”).
276 Notes, supra note 1, at 121-22 (John Lansing, June 16, 1787).
277 “To me the policy of such a Convention appears questionable. Their authority is to be derived from Acts of the State Legislatures
authorized, either by Themselves or others, to alter constitutions [?] I think not. They who hold commissions, can by virtue of
them neither retrench nor Extend the Powers conveyed by them.” Letter from John Jay to George Washington (Jan 7, 1787), in
The Founders’ Constitution, supra note 111, at 188. “That powers are wanting, none can deny. Through what medium they are to
be derived, will, like other matters, engage public attention. That which takes the shortest course to obtain them, will, in my
opinion, under present circumstances, be found best. Otherwise, like a house on fire, whilst the most regular mode of
extinguishing it is contended for, the building is reduced to ashes.” Letter from George Washington to Henry Knox (Feb. 3,
1787), in id., supra note 111, at 188 .
278 Notes, supra note 1, at 125 (James Wilson, June 16, 1787).
279 See id. at 564 (discussion, Aug. 31, 1787).
280 Even as late as August 31, a delegate noted that “[h]e had long wished for another Convention, that will have the firmness to
provide a vigorous Government, which we are afraid to do.” Id. at 567 (Robert Morris, Aug. 31, 1787).
281 Id. at 659 (Benjamin Franklin, Sept. 17, 1787).
End of Document
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
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