The three and a half percent compromise
It shaped America's social contract
Once upon a time, there was a dysfunctional government in America. The legislative branch couldn’t get anything done without a supermajority; states pushed back on federal prerogatives; and the nation was on edge after an attempted insurrection. Fortunately, within two years, a small-but-critical block of swing voters would bridge the divide between polarized factions, creating a path forward and ushering in new prosperity.
The year was 1787, and there was widespread agreement that the first attempt at a framework for national government, the Articles of Confederation, wasn't working. Disputes among the states, such as the “oyster war” over fishing rights in the Chesapeake Bay, went unresolved because there was no judicial branch. Amending the Articles required unanimous approval, ensuring certain failure to any such efforts. In May, delegates from a dozen states convened with a plan to start over. Over four months in the hot Pennsylvania state house, dozens of delegates debated the shape and scope of a national government, eventually producing a framework still very recognizable today.
“Not a single delegate was pleased with every provision of the Constitution,” Peter Irons concluded in A People's History of the Supreme Court, quoting George Washington's own belief that the document was “the best that could be obtained at this time.” But if those compromises had not been made, the new nation would likely have never found its footing. Some of them, like prohibiting the states from interfering in interstate commerce, remain functional today. Other compromises, like the methods of selection for vice-president and US senators were painted over by subsequent amendments. And the infamous Three-Fifths Compromise has been roundly criticized and/or held up as racist intention in the drafting.
(It's worth asking, though, what other viable options were available to settle the matter of representation for slaves. The 1790 census found New Hampshire and South Carolina both had 142,000 free people living within their boundaries, but South Carolina also had 107,000 slaves. Had the Constitution granted South Carolina 75% more representation in Congress based on their total population, northern states would have rejected it; likewise, if representation had been apportioned solely on the basis of the free population, southern states would have walked away.)
While the new Constitution did include an amendment process, it was presented to the states “as-is.” Opponents of the proposal, who found themselves labeled anti-Federalists, faced a major disadvantage in that they had no alternative to offer. Arguing for the status quo and the Articles of Confederation was less appealing, so much of their opposition focused on the lack of a bill of rights. Elbridge Gerry (from whom we get the word gerrymandering) had proposed the Philadelphia convention draft such a list, but was overwhelmingly voted down after a brief debate.
As the states began to consider ratification of the Constitution—a strict up-or-down vote—some anti-Federalists resorted to obstructionist tactics we might recognize today. In Pennsylvania, they refused to attend the special legislative session so that the necessary 2/3rds quorum could not be achieved. Only after two delinquent members were apprehended and brought to the legislative chamber by force were the Federalist delegates able to move the ratification process forward, ending in a 46-23 vote in favor on December 12, 1787.
However, Pennsylvania, home to influential thinkers like Benjamin Franklin, was the only one of the five largest states where the new Constitution had wide support. North Carolina voted down ratification by a vote of 184-84, and New York, Virginia, and Massachusetts were all divided over this take-it-or-leave-it offer.
State by state, conventions met. Hundreds of Massachusetts delegates, almost evenly split between the two factions, convened in Boston. The debate over ratification raged for weeks, the outcome too close to call. Finally, a deal was brokered. Governor John Hancock was forced to accept the demands of Samuel Adams, who was perhaps the most respected of the anti-Federalists, that any approval of the Constitution must include draft amendments for a federal bill of rights. After gaining this concession, Adams publicly threw his support behind ratification. His key block of swing votes unlocked a victory for Hancock, 187-168.
In Richmond, Virginia, Governor Edmund Randolph was among the prominent anti-Federalists. Despite having voted against the Constitution in the Philadelphia convention the previous summer, he negotiated a similar deal with James Madison. Madison, primary architect of the Constitution, had consistently opposed a bill of rights. However, Patrick Henry's powerful oration for the anti-Federalists dominated the Virginia convention, and Madison felt he had little choice but to cut a deal in exchange for ratification. Like Samuel Adams, Randolph's “defection to the Federalist camp” brought a decisive block of votes for ratification, 89-79.
New York was especially conflicted; customs duties were a major part of their state revenue. Was the promise of effective government under the new Constitution worth the sacrifice? The virtues of the proposal were extolled in the Federalist Papers, a series of 85 articles written by John Jay, James Madison, and the prolific Alexander Hamilton. Published in New York under the collective pseudonym “Publius,” the articles answered common questions and addressed concerns, explaining the advantages of adopting the Constitution.
While the Federalist Papers shored up support, they did not secure the necessary votes. Following the strategy used in Massachusetts and Virginia, the Federalists in New York conceded to the opposition's demands for a bill of rights. Melancton Smith, who had been known as an anti-Federalist, then made a motion for ratification on July 26, bringing critical swing votes to the Federalist side for a 30-27 victory.
The ratification votes of most other states were by much larger margins—Maryland by a vote of 63-11—but these three large and influential states were essential to the adoption of the Constitution. Had 3.5% of the delegates in Massachusetts, Virginia, and New York swung their votes against ratification instead of behind it, the America that we know today would not exist.
This then, was the Three and a Half Percent Compromise. Forced to choose between the lesser of two evils—an unrestrained federal government or a dysfunctional one—Sam Adams, Edmund Randolph, and Melancton Smith accepted the responsibility of being deciders. By offering conditional support based on a set of legislative demands, they leveraged their votes to win America a Bill of Rights, which was ratified on December 15, 1791.
Their example provides a model for similar game-changing maneuvers today, 230 years after the bill of rights was ratified.
Once upon a time, there was a dysfunctional government in America. The legislative branch couldn’t get anything done without a supermajority; states pushed back on federal prerogatives; and the nation was on edge after an attempted insurrection. Fortunately, within two years, a small-but-critical block of swing voters would bridge the divide between polarized factions, creating a path forward and ushering in new prosperity.
The year was 2021, and there was widespread agreement that both of the political parties were terrible, yet they managed to win 99% of elections. An American Union of swing voters proposed a specific legislative package based on the duties enshrined in the Constitution; establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty, to ourselves and our posterity. Incumbents of both parties could win votes for reelection by placing the legislation on the President’s desk prior to the 2022 midterms.
Unlike the delegates in 1788, it wasn’t necessary for voters to organize by mailing letters or gathering in a single room. Concerned citizens across the nation were able to coordinate and collaborate across the internet in real time, building toward a 3.5% block of swing votes.
(Interestingly, that 3.5% value was also identified by Erica Chenoweth, a political scientist at Harvard, as the percentage of a population needed to make a nonviolent revolution succeed. Electorally, about 1/7th of the House and 1/3rd of the Senate won their 2020 elections with less than 53.5% of the vote—a sufficient number of races to determine the balance of power in both chambers.)
Like Edmund Randolph’s demand for a bill of rights to “secure the blessings of liberty,” the American Union offered a positive vision for the 21st century with three demands: end poverty, end mass incarceration, and end the endless wars. To tens of millions of Americans struggling under the dysfunction of the status quo, this was a persuasive offer.
Like the ratification of the Constitution, the legislative package was a take-it-or-leave offer for every candidate for Federal office. Legislators around the country knew that that such proposals were frequently a mix of good, bad, or otherwise imperfect provisions, yet they almost always went through. It was the way Congress got most things done.
Like Samuel Adams, the American Union of swing voters was willing to look beyond the lesser-of-two-evils paradigm, and accept the responsibility of being the deciders in the 2022 election. Did 3.5% of Americans throw their votes behind a compromise, and usher in a new age of prosperity when the legislation was passed? Future historians may write the story, but the outcome is currently unknown.
You have the power to decide.
(Read more: How the American Union is shaking up the midterms)
(Learn more with the American Union newsletter)