The Constitutional Convention as a Four Act Drama

Act I:
The Alternative Plans


Scene 1: Laying Down the Rules
May 14: Constitutional Convention lacks necessary quorum
Only four delegates from Virginia and four delegates from Pennsylvania present.  This Second Monday in May was the day initiated by the Annapolis Convention and confirmed by the Confederation Congress. The delegates “adjourned from day to day until Friday of the said month,” when the quorum requirement was met!  The entire Virginia delegation was there within three days of the scheduled start of the Convention.  The delegates drafted the Virginia Plan and disseminated it to the arriving delegates over the next week.

Madison’s Notes of the Debates

May 25: Constitutional Convention meets quorum requirement
Convened and elected officers. (Washington as President, William Jackson as Secretary.) Chose committee (Wythe, Hamilton, and C. Pinckney) to prepare rules.

Madison’s Notes of the Debates

May 28: Committee on Rules Reports rules for Convention
Sixteen rules adopted and additional suggested rules referred to the committee. The Convention called to reconsider the efficacy of the Articles of Confederation began by adopting five voting rules of the Articles: 1) a quorum required a majority of states, 2) each state was allotted one vote, 3) the voting was to be by states and not by individuals, 4) each state could send up to seven delegates, and 5) each state sets its own internal quorum requirements. (The Convention, also without argument, accepted the “honorary” presence of Franklin as the eighth delegate from Pennsylvania.)

Madison’s Notes of the Debates

Scene 2: The 15 Resolutions of the Virginia Plan
May 29: Virginia Plan introduced and defended by Randolph
The Committee on Rules reported and five additional rules, including secrecy, were adopted. The language of the secrecy rule was: “nothing spoken in the house be printed, or otherwise published or communicated without leave.”  Madison defended the rule in a letter to James Monroe: “it will secure the necessary freedom of discussion.”

Edmund Randolph submitted and defended a set of 15 Resolutions, known as the Virginia Plan. Randolph reminded the delegates that their “Mission” was to prevent “the fulfillment of the predictions of the American downfall.” The Convention agreed to meet the next day as a Committee of The Whole to consider the Resolutions.

Charles Pinckney also filed a plan.

Madison’s Notes of the Debates

Scene 3: First Discussion of the Virginia Plan
May 30: Resolution 1 amended and Resolution 2 discussed
Madison reports that Roger Sherman took his seat.  The whole dynamic of the Convention would change as a result of his presence.  The Convention resolved itself into Committee of The Whole, Nathaniel Gorham in the Chair. Four votes were recorded with 8 state delegations voting.

Resolution 1: After discussion, agreed (6 – 1 – 1) that a national government consisting of a supreme legislature, judiciary, and executive should be formed. Connecticut voting against, New York divided. G. Morris “explained the distinction between a federal and a national, supreme, Government.” Sherman opposed “too great inroads on the existing system.”
Resolution 2: Discussed whether representation should be based on population or amount of each State’s financial contribution.

Madison’s Notes of the Debates

May 31: Resolutions 3 - 6 discussed and 5a defeated.
Four votes recorded with ten states voting.

Resolution 3: Decided on a bicameral legislature.
Resolution 4a: Agreed (6 – 2 – 2) on election of First Branch by the people. New Jersey and South Carolina voted “no.” Connecticut and Delaware were divided. New York voted “yes.” Lansing had not yet arrived.
Resolution 5a: Defeated (7 – 3 – 0) Second Branch elected by the First Branch. Only Massachusetts, Virginia, and South Carolina voted in favor of Resolution 5a of the Virginia Plan that called for “the members of the second branch… to be elected by those of the first” based on a scheme of popular representation.
Madison‘s reaction: “a chasm (was) left in this part of the plan.”
Sherman‘s suggestion to fill the chasm: “election of one member by each of the State Legislatures.”
Resolution 6: Agreed unanimously that either branch could initiate legislation. Agreed unanimously to State Incompetence and Negative on State Laws clauses.

Madison’s Notes of the Debates

June 1: Debated and postponed Resolution 7 on the Presidency.
Resolution 7: Agreed to institute a National Executive with power to carry into effect the national laws and to appoint officers not otherwise provided for. Agreed (5 – 4 – 1) on a seven-year term for Executive. In Massachusetts, King and Gorham vote in favor while Gerry and Strong vote against. Connecticut, North Carolina, South Carolina, and Georgia vote “no.” Postponed consideration of single or plural Executive.

Madison’s Notes of the Debates

June 2: Further lengthy deliberation of Resolution 7
Resolution 7: Confusing day on the Executive. Agreed to selection of Executive by Legislature. Agreed on seven-year term (8 – 2), and ineligible after one term (7 – 2 – 1). Dickinson‘s motion that Executive be subject to impeachment defeated (9 – 1).
Franklin: Executive should receive no salary. Motion postponed.

Madison’s Notes of the Debates

June 4: More deliberation of Resolution 7
Seven recorded votes. New Jersey absent.

Resolution 7: Another confusing day on the Executive. Agreed (7 – 3) on single Executive. New York voted “no.” Lansing and Yates outvoted Hamilton. Virginia voted “yes”: Washington broke a 2-2 tie in Virginia.
Resolution 8: Council of Revision postponed. Agreed (8 – 2) to give Executive a veto over legislation subject to override by 2/3 of each branch of Legislature. Gerry objected to the Judiciary and the Executive having the joint power of prior review: the Judiciary were granted “the exposition of the laws, which involved a power of deciding on the Constitutionality.” King agreed: “the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.”
Resolution 9: Agreed to establish a National Judiciary consisting of a Supreme Court and one or more inferior tribunals.

Madison’s Notes of the Debates

June 5: Consideration of Resolutions 9-15
Resolution 9: Agreed to delete “one or more” and change to “a Supreme Court and inferior tribunals.”
Resolution 9: Debated judicial selection and postponed decision, but agreed (8 – 2) to reject approval of judicial appointments by Legislature.
Resolution 9: Agreed on judicial tenure during good behavior. Agreed on a salary provision.
Resolution 9: Reconsidered inferior tribunals and agreed to eliminate reference to them, then agreed to empower the Legislature to establish such courts.
Resolution 10: Agreed (8 – 2) to admit new states on equal footing with original states.
Resolution 11: Postponed republican guarantee clause until representation is settled.
Resolution 12: Passed an Interim Government provision (8 – 2).
Resolution 13: Postponed provision for Constitutional amendments (7 – 3).
Resolution 14: Postponed oath of officers (6 – 4 – 1). New Jersey voting.
Resolution 15: Postponed mode of ratification of the Constitution. Sherman thought a “popular ratification unnecessary, the Articles of Confederation providing for changes and alterations with the assent of Congress and ratification of State Legislatures.” Madison thought it was  ”essential” and “indispensable” that “the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”

Madison’s Notes of the Debates

Scene 4: Madison-Sherman Exchange
June 6: Are people 'more happy in small than large States?'
Resolution 4a: Defeated (8 – 3) motion to have State Legislature elect First Branch of National Legislature. Connecticut, New Jersey, and South Carolina opposed.  James Wilson articulated the theoretical issue early in the session: a vigorous general government acquires its “vigorous authority… from the mind or sense of the people at large.” Sherman‘s response recalls the argument of the “celebrated” Montesquieu on behalf of the traditional virtues of the small republic and anticipates one of the main Antifederalist themes during the ratification struggle: for republics to be free, they must be small and homogeneous rather than large and heterogeneous. “The objects of the Union, he thought were few… All other matters civil and criminal would be much better in the hands of the States. The people are more happy in small than in large States.” Besides, it is not the factious nature of the people that must be guarded against; rather it is the corruption of the politicians who are unable to resist the temptation of political power. Madison‘s argument in favor of popular representation focused on 1) the dangers of majority faction, especially concerning the property question, and 2) the solution residing in the control of the effects of faction rather than in the elimination of the causes of faction.  This June 6 speech points us back to his Vices, written in Spring 1787, and forward to Federalist 10. The extended republic argument of the Vices and Federalist 10 are intertwined with 4a of the Virginia Plan. And the link is what is to be done about controlling the effects, in contrast to eliminating the causes, of majority faction.Madison claimed that to “enlarge the sphere… was the only defense against the inconveniences of democracy” in “civilized societies”—those attached to the preservation of the diversity of opinions, passions, and interests in a free society—consistent with “the democratic form of Government.” Faction, in effect, is sown in the nature of man and when we have democratic or republican government, we get a factious majority tyrannizing an unprotected minority: “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man… Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest.” Madison wanted a modification in the structure of the Articles of Confederation because they preserved the privileged position of the State Legislatures who were guilty of putting the revolutionary principles of economic liberty, political liberty, and religious liberty in danger.
Resolution 8 Reconsidered: The second vote of the day concerned the Council of Revision provision of the Virginia Plan. The Council of Revision added “a convenient number of the national Judiciary to the Executive in the exercise of the negative” over acts of Congress. The vote was 8-3 against the proposition. Only Connecticut, New York, and Virginia voted in favor of the Council of Revision.

Madison’s Notes of the Debates

Scene 5: Second Discussion of the Virginia Plan
June 7: How to fill 'the chasm' created by defeat of Resolution 5a
Resolution 5a: Agreed (11 – 0) to election of Second Branch of National Legislature by State Legislatures. This proposal by Dickinson and Sherman filled the “chasm” mentioned by Madison. He argued that the purpose of the Senate is to proceed “with more coolness, with more system, and with more wisdom, than the popular branch.” Madison failed to carry Virginia.

Madison’s Notes of the Debates

June 8: Resolution 6 and the Negative on State laws
Resolution 6: A move by Madison and Pinckney to extend the Congressional negative to all state laws was defeated (7 – 3 – 1). Massachusetts, Pennsylvania, and Virginia were in favor with Delaware divided. Pinckney failed to carry South Carolina. Virginia’s vote was 3 – 2. According to Madison, “Mr. Randolph and Mr. Mason no. Mr. Blair, Doctor McClurg, Mr. Madison yes. General Washington not consulted.”

Madison’s Notes of the Debates

June 9: Reconsideration of Resolution 7
Resolution 7: Defeated (10 – 1) a motion by Gerry that State Executives elect the National Executive. Delaware divided.
Resolution 4a: Debated voting procedures within the National Legislature.

Madison’s Notes of the Debates

Scene 6: The 19 Resolutions of the Amended Virginia Plan
June 11: Popular representation in both branches?
G. Morris absent today until June 30.

Resolution 4a: Return to National Representation. Sherman proposes a compromise: popular representation in the House and equal State representation in the Senate. South Carolina suggests that wealth, and not just people and States, be represented. According to Butler, “money was power.” Wilson introduces the 3/5 Clause. Decided (9 – 2) that representation in First Branch of the National Legislature should be based on free population plus 3/5 of all other persons. Only New Jersey and Delaware vote “no.” Sherman and Ellsworth now propose one vote per state in the Senate.  Sherman: “Everything depended on this.  The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch.”  Disagreed (6 – 5) that each State should be equally represented in Senate. Wilson assisted Madison in defeating Connecticut, New York, New Jersey, Delaware, and Maryland.
Resolution 5a: Agreed (6 – 5) that representation in the Second Branch should also be proportional plus 3/5 of all other persons. Connecticut, New York, New Jersey, Delaware, and Maryland vote “no.” The June 11 version of the “Connecticut Compromise” failed.
Resolution 13: Discussed.
Resolution 14: Agreed (6 – 5) to require oaths to observe the National Constitution and National laws by State officers. Sherman “opposed it as unnecessarily intruding into the State jurisdictions.”

Madison’s Notes of the Debates

June 12: The Specifics of Representation
Resolution 15: Agreed (5 – 3 – 2) to refer the Constitution to the people of the several states for ratification. Pennsylvania not voting. Delaware and Maryland divided. Connecticut, New York, and New Jersey voted “no.”
Resolution 4b: Agreed (7 – 4) on three-year terms for First Branch of National Legislature. Massachusetts, Connecticut, North Carolina, and South Carolina voted “no.”
Resolution 4c: Struck out, without discussion, rotation and recall provisions, thus marking the end of the “small republican” legislative tradition.
Resolution 4d: Agreed (8 – 3) to provide “liberal compensation” for members of the First Branch “to be paid from the National Treasury.”
Resolution 4e : Agreed (8 – 1 – 2) to make members of First Branch ineligible for offices under the National Government for one year after leaving the House. Maryland divided.
Resolution 5b,c: Agreed to require a minimum age of 30 (7 – 4) and a seven-year term for Senators (8 – 1 – 2). Georgia and North Carolina divided.
Resolution 5d: Defeated (7 – 3 – 1) no pay for Senators. Maryland divided.
Resolution 9: Discussed and postponed the jurisdiction to be given the Supreme Court.

Madison’s Notes of the Debates

June 13: The 19 Resolutions of the Amended Virginia Plan continued
Resolution 9: Agreed that the jurisdiction of the National Judiciary should extend to cases concerning the collection of the national revenue, impeachment of any national officers and questions of national peace and harmony.
Resolution 9: Agreed that the Supreme Court should be appointed by the Senate.
Resolution 6: Rejected (8 – 3) a motion requiring money bills to originate only in the First Branch of the Legislature.

Agreed to vote on Amended Virginia Plan with 19 Resolutions.

Madison’s Notes of the Debates

Scene 7: The 9 Resolutions of the New Jersey Plan Discussed
June 14: Dickinson to Madison: 'you see the consequences of pushing things too far.'
New Jersey requested postponement of Amended Virginia Plan to present an alternative plan. Patterson wanted to introduce a plan that was “purely federal.” A postponement was agreed to.

Madison’s Notes of the Debates

June 15: New Jersey Plan introduced
Patterson submitted 9 Resolutions. The Plan restored the single chamber of the Articles of Confederation with each State represented equally regardless of population size.  The power to tax and regulate interstate commerce was added.  The other key features of the New Jersey Plan were: 1) the absence of popular representation, 2) a unicameral legislature, 3) equal representation of the States, and 4) the States retained as the central structural players.  New Jersey actually met their own internal quorum requirements on this day!

Madison’s Notes of the Debates

June 16: The New Jersey Plan is 'legal' and 'practical'
The New Jersey Plan was debated. The Plan increases the powers of Congress, but leaves the federal structure of the Articles of Confederation unaltered.  Patterson: “Our object is not such a Government as may be best in itself, but such a one as our Constituents have authorized us to prepare, and as they will approve.” Wilson “conceived himself authorized to conclude nothing, but to be at liberty to propose anything.” Pinckney remarked that there was no principle involved: “Give New Jersey an equal vote,” and she “will dismiss her scruples.” Randolph: “When the salvation of the Republic was at stake, it would be treason to our trust, not to propose what we found necessary.”

Madison’s Notes of the Debates

Scene 8: The 11 Resolutions of Hamilton's Plan Presented
June 18: Neither the Virgina Plan nor the Virginia Plan is adequate to secure 'good government'
Hamilton argues that the Virginia Plan does not go far enough in enhancing the powers or altering the existing structure of the federal arrangement to secure “good government.” According to Hamilton, “we ought to go as far in order to attain stability and permanency, as republican principles will admit.”  He recommends 11 ways to create a strong central and republican government.  This is the first time that the word “vested” has been used to identify the location of political power.  Note Hamilton’s position on war powers.

Madison’s Notes of the Debates

Scene 9: Decision Day - Adopotion of the Amended Virginia Plan
June 19: New Jersey Plan rejected
Defeated (6 – 4 – 1) Dickinson‘s motion to defer consideration of the New Jersey Plan. Connecticut, New York, New Jersey, and Delaware voted “no.” Maryland divided. Heard Madison‘s eight arguments against the New Jersey Plan. “The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable.”

Defeated the New Jersey Plan (7 – 3 – 1). Connecticut voted “yes!” New York, New Jersey, and Delaware voted “no.” Maryland divided.

Madison summarized Act I. The issue was “the great difficulty” of representation.  The coalition in favor of equal representation for the States “began now to produce serious anxiety for the result of the Convention.”

Madison’s Notes of the Debates


Act II:
The Connecticut Compromise


Scene 1: Consideration of Revised Virginia Plan
June 20: Lansing questions legality and practicality of the Amended Plan
Revised Resolution 1 and 2: Debated the issue of a two-branch legislature.
Revised Resolution 2: Defeated (6 – 4 – 1) a motion to consider vesting the powers of legislation in a one-branch Congress. Maryland divided.

Sherman argued that “the disparity of the States in point of size… was the main point of difficulty.” Following L. Martin, he argued that “each State like each individual had its peculiar habits, urges, and interests.”  But “if the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other.”

Madison’s Notes of the Debates

June 21: Specifics of House Representation discussed
Revised Resolution 2: Resumed discussion of the National Legislature and resolved that it should have two branches (7 – 3 – 1). Maryland divided. New York, New Jersey, and Delaware voted “no.”
Revised Resolution 3: Reconsidered method of electing First Branch. Defeated a motion for election by State Legislatures (6 – 4 – 1). Agreed to popular election (9 – 1 – 1). Maryland divided. New Jersey voted “no.” Wilson considered “the election of the First Branch by the people not only as the Cornerstone, but as the foundation of the fabric.”
Revised Resolution 3b: Discussed length of term of First Branch. Agreed (7 – 3 – 1) to strike “three years” and agreed nem con on two years. Maryland divided. Sherman thought “representatives ought to return home and mix with people.”

Madison’s Notes of the Debates

June 22: Specifics of House Representation discussed
Revised Resolution 3c: Defeated a motion to permit First House to determine its pay (7 – 2 – 2). New York and Georgia divided. New Jersey and Pennsylvania opposed.
Revised Resolution 3d: Defeated a move to strike the National Treasury as the source of pay (5 – 4 – 2). New York and Georgia divided.
Revised Resolution 3: Agreed on minimum age of 25 for members of House (7 – 3 – 1). New York divided.
Revised Resolution 3: Discussed making members ineligible for other state or national office during their own term of office plus one year after leaving office. Defeated motion to strike (4 – 4 – 3). New York, Pennsylvania, and Delaware divided.

Madison’s Notes of the Debates

June 23: Ineligibility requirements for members of Congress
Revised Resolution 3: Defeated (5 – 5 – 1) a motion by Butler to provide House members adequate compensation from the National Treasury. Georgia divided.
Revised Resolution 3: Agreed (8 – 2 – 1) to strike ineligibility of House members for other Federal Offices. Massachusetts divided. Pennsylvania and Georgia voted “no.”

Madison’s Notes of the Debates

June 25: The purpose of the Senate
Revised Resolution 4: Agreed (5 – 5 – 1) to change “Second Branch of the National Legislature” to “Second Branch of the United States Legislature.”
Revised Resolution 5: Agreed (9 – 2) to election of the Second Branch by State Legislatures. Pennsylvania and Virginia voted “no.”
Revised Resolution 4b: Agreed unanimously to minimum age of 30 for Senators.

Pinckney delivers an “American Exceptionalism” speech: “the people of this country are not only very different from the inhabitants of any State we are acquainted with in the modern world; but I assert that their situation is distinct from either the people of Greece or Rome, or of any State we are acquainted with among the ancients.”

Madison’s Notes of the Debates

June 26: Specifics of Senate Representation discussed
Revised Resolution 4: Resumed discussion of Senate terms. Nine-year terms with triennial rotation defeated (8 – 3). Sherman‘s six-year terms with biennial rotation proposal approved (7 – 4).
Revised Resolution 4: Agreed (10 – 1) that members should “receive a compensation for the devotion of their time to the Public Service.” South Carolina voted “no.”
Revised Resolution 4: Disagreed (6 – 5) that State Treasuries should pay Senators.
Revised Resolution 4: Discussed and agreed unanimously on eligibility for other Federal and State offices.

Madison explained that the main purpose of the Senate was “to protect the people against the transient impressions into which they themselves may be led.” Madison links “longevity” in the Senate with “longevity” of the American System.  The problem is the emergence of “a leveling spirit” and the solution is to find a “republican” remedy.   See Federalist 63 where Madison argued on behalf of “the cool and deliberate sense of the community.” Sherman presented the opposing argument: “Government is instituted for those who live under it… Frequent elections are necessary to preserve the good behavior of rulers.” Hamilton “did not mean to enter particularly into the subject.” But he did! “He acknowledged himself not to think favorably of Republican Government; but addressed his remarks to those who did think favorably of it. In order to prevail on them to tone their Government as high as possible.”

Madison’s Notes of the Debates

June 27: Resolutions 7 and 8 discussed
Revised Resolution 6: Postponed.
Revised Resolution 7: Discussed “the right of suffrage in the first branch.”
Revised Resolution 8: Discussed “the right of suffrage in the second branch” to be the same as the First Branch.

Luther Martin delivered a three-hour “desultory” speech, the substance of which was “that an equal vote in each State was essential to the federal idea, and was founded in justice & freedom, not merely in policy.” More: “the propositions on the table were a system of slavery for 10 States.”

Madison’s Notes of the Debates

June 28: Luther Martin resumes his 'discourse' on the role of States
Revised Resolution 7: Resumed discussion on representation in the First Branch.
Revised Resolution 8: Resumed discussion on representation in the Second Branch.

Luther Martin continued his speech from the previous day, “contending that the General Government ought to be formed for the States, not individuals.” Madison remarks: “This was the substance of the residue of his discourse which was delivered with much diffuseness and considerable vehemence.”  Franklin, disturbed by “the small progress we have made after 4 or 5 weeks,” calls for “prayers imploring the assistance of heaven.” Williamson responded: “the Convention had no funds.”

Madison’s Notes of the Debates

Scene 2: Contours of Compromise - Partly National, Partly Federal
June 29: Ellsworth: 'we were partly national; partly federal
Revised Resolution 7: Approved (6 – 4 – 1) proportional representation in the House. Maryland divided. Connecticut in favor.
Revised Resolution 7: Approved (9 – 2) a motion to postpone consideration of the rest of Resolution 7, representation by States in Second Branch. Maryland divided. Madison: “too much stress was laid on the rank of the States as political societies… He entreated the gentlemen representing the small States to renounce a principle which was confessedly unjust which could never be admitted, and if admitted must infuse mortality into a constitution which he wished to last forever.” Ellsworth: “we were partly national; partly federal.” He trusted “on this middle ground a compromise would take place.  He did not see that it could take place on any other. And if no compromise should take place, our meeting would not only be in vain but worse than in vain.”

Madison’s Notes of the Debates

June 30: Loose talk of division and disunion
Defeated (5 – 2 – 1) resolution to ask New Hampshire to send its delegates. Pennsylvania, Delaware, and Georgia absent. Maryland divided. New York and New Jersey opposed.

Revised Resolution 8: Ellsworth introduces “Connecticut Compromise Motion”: equal representation in Second Branch with proportional representation in First Branch. Ellsworth: “We are razing the foundations of the building.  When we need only to repair the roof.” Sherman declared: “we are now at a full stop.” Madison claims that equal State representation in the Senate would infuse “mortality” into the union.  Moreover, the great divide in American politics is “having or not having slaves” rather than large and small States. Davie suggested, “we were partly federal, partly national in our Union.”

The loose talk of division came from Gunning Bedford who was unconvinced that there was a middle way “between a perfect consolidation and a mere confederacy of the States.”

Madison’s Notes of the Debates

July 2: Creation of the Gerry Committee
Revised Resolution 8: Tied (5 – 5 – 1) on Ellsworth‘s motion giving each State one vote in Senate and proportional representation in House. Yates and Lansing voted “yes.” Georgia divided. Massachusetts voted no.  Maryland voted yes; Jenifer was temporarily absent. Davie failed to carry North Carolina. This is G. Morris returns after an 18-day absence.
Revised Resolution 8: Voted to commit the question (9 – 2).
Revised Resolution 8: Voted to commit to committee of one member from each state (10 – 1). Pennsylvania voted “no.” Madison failed to carry Virginia. Gerry chaired committee made up of Gerry, Ellsworth, Yates, Patterson, Franklin, Bedford, L. Martin, Mason, Davie, Rutledge, and BaldwinEllsworth: from the State Governments could he “derive the greatest happiness he could expect in this life.” Franklin: “both sides must part with some of their demands.” Bedford: “There was no middle way between a perfect consolidation and a mere confederacy of the States.” Davie: “we were partly federal, partly national in our Union.” Madison reminded the delegates that “the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves.”

“That time may be given to the committee, and to such as chuse to attend to the celebrations of the Anniversary of Independence,” the Convention adjourned until Thursday.

Madison’s Notes of the Debates

July 3
Gerry Committee met to work on the questions of the previous day.
Scene 3: Independence Day Contemplation
July 4: 'When in the Course of Human Events'
Independence Day observed. Delegates attend Race Street Church (also known as First Reformed Church) on Fourth and Race Streets to hear annual oration on the anniversary of the Declaration of Independence given by Mr. Mitchell, a student of law. William Pierce and William Few left over the 4th of July break; they decided to return to New York and represent Georgia in the Confederation Congress.
Scene 4: The Gerry Committee Compromise Proposal Discussed
July 5: The Compromise Proposal has three components
Received Report from the Gerry Committee:

  1. Representation in First Branch by population (1:40,000).
  2. Representation in Second Branch to give each state an equal vote.
  3. Money Bills to originate in First Branch and not subject to amendment in Second Branch.

Gerry principled defense of Report: “We were neither the same nation nor different nations. We ought not therefore to pursue the one or the other of these ideas too closely.” Mason: “there must be some accommodation.”

Madison’s Notes of the Debates

July 6: Debating the merits of proportional representation
Gerry Committee Report:

Agreed (7 – 3 – 1) to commit the question of representation of 1:40,000 in the First Branch to the Morris Committee made up of G. Morris, Gorham, Randolph, Rutledge, and King. Maryland divided. New York, New Jersey, and Delaware voted “no.” Agreed (5 – 3 – 3) to retain money bills provision. Pennsylvania, Virginia, and South Carolina voted “no.” Massachusetts, New York, and Georgia divided.

Pinckney argued that “the number of inhabitants appeared to him the only just and practicable rule” of representation.  Thus “blacks ought to stand on an equality with whites.” Mason “was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accommodation.”

Madison’s Notes of the Debates

July 7: Sherman reinforces case for equal representation of States in Senate
The Gerry Committee Report was discussed. The question of equal vote for each state in Second House was taken up and agreed (6 – 3 – 2) to retain this provision. Massachusetts and Georgia divided. Pennsylvania, Virginia, and South Carolina voted “no.” Gerry: “the new Government would be partly national, partly federal.”

Madison’s Notes of the Debates

July 9: Distributing 56 seats in the House to the 13 States
The Gerry Committee Report was reconsidered.

The G. Morris five-member Committee suggested approval of the population formula (1:40,000).  The second paragraph of the Gerry Committee Report was approved (9 – 2).  New York and New Jersey voted “no.”  The first paragraph was referred to an eleven-member committee (9 – 2).  New York and North Carolina voted “no.”  Gorham from the Morris Committee:  ”The number of blacks and whites with some regard to supposed wealth was the general guide.”

Madison’s Notes of the Debates

July 10: North-South, Large-Small Discussion
Received report from the Eleven Member Committee allocating 65 representatives among the 13 States for the House.
Delegates Yates and Lansing from New York leave the Convention and explained their reasons to Governor Clinton of New York. King “was fully convinced that the question concerning a difference of interests did not lie where it had hitherto ben discussed, between the great and small States; but between the Southern and Eastern.”

Madison’s Notes of the Debates

July 11: The Census and Representation
Inconclusive discussion on periodical censuses.Defeated (7 – 3) a motion to strike out 3/5 for the substitute Butler-Pinckney “all” motion. G. Morris “could never agree to give such encouragement to the slave trade.” Only Delaware, North Carolina, and South Carolina voted in favor of the Butler-Pinckney count slaves as 5/5 motion. “Mr. Mason could not agree to the motion, notwithstanding it was favorable to Virginia because it was unjust.”

Defeated (6 – 4) a motion “to include 3/5 of the blacks.” G. Morris was compelled “to declare himself reduced to the dilemma of doing injustice to the Southern States or to human nature, and he must therefore do it to the former.”

This day marked the absence of the New York delegation.

Madison’s Notes of the Debates

July 12: 'Blacks equal to the whites in the ratio of representation?'
Approved (5 – 4 – 1) a motion to have a census within 6 years of the First Congress. Defeated (7 – 3) a motion for succeeding censuses every 20 years. Agreed (8 – 2) on census every 10 years.Defeated (8 – 2) motion “for rating blacks as equal to whites instead of as 3/5.” Approved (6 – 2 – 2) a motion to proportion direct taxes, including 3/5, to representation.

Madison’s Notes of the Debates

July 13: Representation in the Senate
Approved (5 – 4 – 1) a motion to proportion direct taxes to the number of representatives until the first census. Pennsylvania divided. Agreed (9 – 0 – 1) that the Legislature can regulate the number of representatives in accordance with the number of inhabitants. Delaware divided. G. Morris and Butler have a pointed exchange over slavery. Morris was willing to take “friendly leave of each other” rather than to bend on the 3/5 clause.  Butler responds “the security the Southern States want is that their negroes may not be taken from them which some gentlemen within or without doors, have a very good mind to do.” Confederation Congress passes Northwest Ordinance.

Madison’s Notes of the Debates

July 14: Does partly national, partly federal make sense?
Defeated (5 – 4 – 1) a motion to limit representation of new western states. Discussed equal vote for each State in Second House with money bills originating in First House. Madison argues against the “partly federal, partly national” accommodation. Pinckney moved “that instead of equality of votes” there should be proportional representation in the Senate. Defeated (4 – 6).

Madison’s Notes of the Debates

Scene 5: Decision Day on the Connecticut Compromise
July 16: Connecticut Compromise accepted (5 - 4 - 1)
Agreed (5 – 4 – 1) to Gerry Committee Report: House Proportional, Senate Equal Representation for each State, and money bills originating in the First Branch and not amendable by the Second Branch. This is also known as the Connecticut Compromise. Pennsylvania, Virginia, South Carolina, and Georgia voted “no.” Massachusetts was divided. According to Randolph, if New York had been present, the vote would have been (6 – 4 – 1).

How does a 5 – 4 – 1 vote represent a compromise? Was it a “mere compromise,” or a “principled compromise?”

Revised Resolution 6b: Began consideration of the proposal to give Congress the authority in all cases to which the separate states are incompetent.

Madison’s Notes of the Debates

Scene 6: Return to the Amended Virginia Plan; Committee of Detail Created
July 17: The Supreme Law of the Land and the Independence of the Presidency
The delegates from large States caucused to decide whether to challenge equal representation in the Senate. They decided not to challenge the compromise.

Revised Resolution 6b: Resumed consideration of the powers to be given Congress. Agreed (6 – 4) to motion to include power to legislate in all cases for the general interests of the Union and in those cases where States are separately incompetent.
Revised Resolution 6c: Defeated (7 – 3) the Congressional negative of State Laws. Madison thought the Congressional negative an “essential” part of the attempt by the Virginia Plan to control State-generated majority tyranny. L. Martin considered the negative to be “improper.” Another “chasm” for Madison. Martin fills the chasm.
Revised Resolution 6c: Motion by L. Martin to make laws and treaties supreme law of the respective States approved nem con. This is the origin of the Supremacy Clause.
Revised Resolution 6c: Began consideration of Executive. Agreed (10 – 0) on a single executive. Defeated (9 – 1) election by citizens of the United States. Defeated (8 – 2) election by electors appointed by State Legislature. Approved (10 – 0) election by Legislature. Postponed decision on seven-year term. Defeated ineligibility requirement (6 – 4). Defeated motion to substitute hold office “during good behavior” rather than seven years (6- 4). Defeated motion to strike seven years (6 – 4).

Madison’s Notes of the Debates

July 18: Discussion of Resolutions 11-16
Revised Resolution 9: Agreed to reconsider ineligibility of Executive (8 – 0) (New Jersey and Georgia not voting).Agreed to Executive Veto with 2/3 override.
Revised Resolution 11: Began consideration of Judiciary. Defeated (6 – 2) motion for appointment by Executive. Motion for Executive nomination and appointment on advice and consent of Second House defeated (4 – 4).
Revised Resolution 12-16: Agreed to let Legislature create inferior tribunals, nem con. Agreed “that the jurisdiction shall extend to all cases arising under the national laws and to such other questions as may involve the national peace and harmony,” nem con. Agreed to admit new States with the consent of less than the whole of the National Legislature. Began consideration of continuing the Confederation during the transitional period. Took up Guarantee of Republican Government for States.

Madison’s Notes of the Debates

July 19: Reconsideration of the Independent Presidency
Revised Resolution 9: G. Morris moved to reconsider the appointment, duration, and eligibility of the Executive. Agreed (10 – 0). Agreed (6 – 3 – 1) to Ellsworth‘s motions to appointment of Executive by electors chosen by State Legislatures (8 – 2). Defeated (8 – 2) ineligibility for re-election. Defeated (5 – 3 – 2) 7-year term. Agreed (9 – 1) to 6-year term.

Madison’s Notes of the Debates

July 20: More disputation over the Independent Presidency
Revised Resolution 9: Took up apportionment of electors among the States with a minimum of one and a maximum of three per State. Defeated (7 – 3) motion to add an elector for New Hampshire and Georgia. Agreed (6 – 4) to Gerry‘s allocation of one to three per each State.
Revised Resolution 9: Made Executive removable by impeachment (8 – 2). Franklin saw impeachment as the republican peaceful alternative to assassination under despotism.
Revised Resolution 9: Agreed on fixed compensation, nem con. Agreed (9 – 1) to be paid out of National Treasury.

Madison’s Notes of the Debates

July 21: The Council of Revision revisited
Revised Resolutions 10, 11: Wilson and Madison argued unsuccessfully on behalf of reinstating original Council of Revision.
Rejected (4 – 3 – 2) motion to join Judiciary with Executive in the exercise of veto power (New Jersey not voting, Pennsylvania and Georgia divided). Agreed (9 – 0) on qualified Executive Veto.Resumed consideration of Judicial appointments.Defeated (6 – 3) Executive appointment unless Senate disagrees. Approved (6 – 3) selection by Senate alone.

Madison’s Notes of the Debates

July 23: Resolutions 17-19 debated
New Hampshire delegates John Langdon and Nicholas Gilman arrived.

Revised Resolution 17, 18, 19: Agreed unanimously on requiring oaths by both National and State officials to support the Articles of Union. Began discussion of ratification. Discussion of Resolution 19 of the Amended Virginia Plan of June 13: “The amendments which shall be offered to the Confederation by the Convention, ought at a proper time or times, after the approbation of Congress to be submitted to an assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the People to consider and decide thereon.” Defeated (7 – 3) motion by Ellsworth and Paterson to amend Resolution 19 to have the new Constitution referred to State Legislatures for ratification. Agreed (9 – 1) to referral to conventions of the people.
Revised Resolution 9: Agreed (7 – 3) to reconsider election of the Executive. Agreed to refer Revised Resolutions to a Committee of five members to be named the following day. Gen. Pinckney reminded the Convention that if the Committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their Report. It was agreed nem con that the committee consist of 5 members, to be appointed tomorrow.

Madison’s Notes of the Debates

July 24: Controversy over the Presidency
Chose Rutledge, Randolph, Gorham, Ellsworth and Wilson for the Committee of Detail.

Revised Resolution 9: Reconsidered choice of Executive by electors. Approved (7 – 4) appointment by national legislature.

Madison’s Notes of the Debates

July 25: More disccusion on the Presidency
Defeated (6 – 5) resolution to let members have copies of the Revised Resolutions of the Virginia Plan during the break.

Revised Resolution 9: Resumed discussion on election of the Executive. Madison compares and contrasts the four proposals for electing the Executive.

Madison’s Notes of the Debates

July 26: Constitutional Convention adjourns with the creation of a 5-member Committee of Detail
Revised Resolution 9: Resumed discussion on election of the Executive and approved (7 – 3) a 7-year term with ineligibility for re-election. Agreed (6 – 3 – 1) to the whole resolution on the Executive.

Wilson reminds participants “We are providing a constitution for future generations, and not merely for the peculiar circumstances of the moment.” Adjourned to Monday, August 6, 1787.
Madison’s Notes of the Debates


Intermission:
Committee of Detail at Work


July 27 – August 6: The Convention was in adjournment while the Committee of Detail was at work. By August 4th, the Committee draft was at the printers.

 


Act III:
The Committee of Detail Report


Scene 1: The Structure and Powers of Congress
August 6: Twenty-Three Articles presented
The Convention received the Report of the Committee of Detail and adjourned to read the 23 Articles.

Mercer from Maryland took his seat.

Madison’s Notes of the Debates

August 7: Articles I-IV and the suffrage issue
Began consideration of the Committee of Detail Report in a Committee of the Whole and covered the Preamble, Articles I, II, III, and part of Article IV.

Agreed (10 – 0) to Preamble and Articles I and II.

Took up Article III (two-house legislature).

Agreed (7 – 3) to delete reference to mutual veto between Houses of Congress.

Discussed Congress meeting 1st Monday of December annually, and agreed to add, “unless a different day shall be appointed by law” (8 – 2).

Motion for May meeting instead of December defeated (8 – 2).

Agreed to Article III as amended.

Took up Article IV, Section 1 (House elections).

Ellsworth and Mason object to the attempt by G. Morris and Dickinson to impose electoral restrictions. Defeated more restrictive freehold qualifications on the electors (7 – 1 – 1).

Madison’s Notes of the Debates

August 8: Article IV deliberated
Agreed unanimously to Article IV, Section 1 concerning qualifications of the electors: “the qualifications of the electors shall be the same as those of the electors in the several States of the most numerous branch of their own legislature.”

Proceeded to Article IV, Section 2 (qualifications of House members).

Agreed (10 – 1) to seven instead of three years citizenship.

Agreed to substitute “inhabitant” instead of “resident”; defeated motions to require 3 years (9 – 2) and 1 year (6 – 4 – 1) of residence, and approved the section (11 – 0).

Agreed to Article IV, Section 3: 65 members in House from First Congress until the first census. Took up Article IV, Section 4 (future apportionment of House).

Agreed (9 – 2) to insert “not exceeding” before 40,000.

Considered last clause of Section 4: “The Legislature shall… regulate the number of representatives by the number of inhabitants… at the rate of one for every forty thousand.”

Defeated (10 – 1) a motion by G. Morris to insert “free” before inhabitants. G. Morris: “Slavery was a nefarious institution.”

Agreed to add a provision introduced by Dickinson for at least one representative for each state in the House.

Moved on to Article IV, Section 5 (money bills).

Approved motion to strike (7 – 4), thus challenging the Connecticut Compromise. Pinckney, G. Morris and Madison carry the day on this motion. Mason: “to strike out the section, was to unhinge the compromise of which it made a part.”

Madison’s Notes of the Debates

August 9: Article V dissected
Took up Article IV, Section 6 (sole power of impeachment, choose its own speaker) and 7 (filling vacancies) and approved both.

Considered Article V, Section 1 (selection of Senators and provision for vacancies).

Defeated motion to strike executive appointment to supply vacancies (8 – 1 – 1).

Agreed to give each Senator one vote and each State two members.

Article V, Section 2 agreed, nem con.

Article V, Section 3 (qualifications): 30 years old, citizen for 4 years, resident.

Defeated motion to require 14 years of citizenship (7 – 4), and 13 years of citizenship (7 – 4).

Defeated 10 years, (7 – 4), agreed to 9 years (6 – 4 – 1).

Substituted “inhabitant” for “resident”.

Article V, Section 4 (Senate shall choose own officers) approved.

Took up Article VI, Section 1 (times and places of election) amended and approved. Again, Randolph objects to defeat of Article IV, Section 5 (Money Bills).

Madison’s Notes of the Debates

August 10: Article VI and Pinckney's property qualifications
Reheard Article IV, Section 2 (giving Legislature authority to establish property qualification for members).

Motion by Pinckney to spell out property qualifications in the Constitution rejected on voice vote. Pinckney suggested $100,000 for President and $25,000 for representatives.

Reconsidered (6 – 5) House residence requirement in Article IV, Section 2, and substituted three years for seven at request of Wilson.

Took up Article VI, Section 3 (Quorum requirements).

Added power to compel attendance of absent members (10 – 0 – 1).

Agreed to Article VI, Section 4 (each House to judge qualifications and elections of its members).

Article VI, Section 5 (freedom of debate), passed nem con.

Took up Article VI, Section 6 (rules, punishment for disorderly behavior, expulsion of members).

Agreed (10 – 0 – 1) to require 2/3 vote for expulsion.

Took up Article VI, Section 7 (Requiring journal and a record of each vote at request of 1/5 of members present), passed (7 – 3 – 1).

Madison’s Notes of the Debates

August 11: Article VI continued
Continued on Article VI, Section 7.

Agreed (6 – 4 – 1) to non-publication in the journal of “such parts as may in their judgment require secrecy.”

Took up Article VI, Section 8 (no more than 3-day adjournment without consent of other House nor to a location other than where they are sitting).

Amended (10 – 1) to preclude adjournment to another place during a session.

Reconsidered Article V, Section 5 (money bills to originate in House, and not be subject to Senate amendment).

Agreed (8 – 2 – 1) to reconsider the money bills provision of the Hamilton on Monday.

Madison’s Notes of the Debates

August 13: Reconsideration day and Dickinson's remark: 'Experience must be our only guide. Reason may mislead us.'
Reconsidered Article IV, Section 2 (House age and citizenship).

Defeated (7 – 4) Connecticut Compromise motion to eliminate 7-year citizenship requirement.

Defeated 9 years (8 – 3), defeated 4 years (8 – 3), defeated 5 years (7 – 3 – 1), and agreed to the section as reported.

Reconsidered Article V, Section 3 (age and citizenship for Senators), and defeated a motion (8 – 3) to reduce 9 years to 7.

Reconsidered Article IV, Section 5 (money bills).

After extensive debate, defeated (7 – 4) Randolph’s motion to reinstate exclusive power to originate in House. Washington supported Randolph on prudential grounds.

Defeated (4 – 7) proposition that money bills originate in House and amended in Senate

Madison’s Notes of the Debates

August 14: Article VI and ineligibility
Took up Article VI, Section 9 (ineligibility of members of legislature to other Federal Offices).

After extensive debate, postponed until powers of Senate were determined.

Proceeded to Article VI, Section 10 (legislative pay to be fixed and paid by their state).

Agreed (9 – 2) that pay should be out of the National Treasury.

Agreed that pay be ascertained by law.

Madison’s Notes of the Debates

August 15: Reintroduction of Council of Revision
Approved Article VI, Section 11 (enacting style for bills). Took up Article VI, Section 12 (either House may originate bills)

Postponed (6 – 5) pending determination of powers to be given Senate.

Took up Article VI, Section 13 (Presidential veto). (See coverage on June 4, June 6, and July 21.)

Defeated (8 – 3) a motion that all bills should be submitted to the Executive and Judiciary before they become law.

Madison‘s provision for the Committee of Revision was defeated for the fourth and final time.

Agreed (6 – 4 – 1) to 3/4 vote to override Presidential Veto.

Agreed (9 – 2) to 10 days instead of 7 for the President to return bills.

Madison’s Notes of the Debates

August 16: Deliberation of the Enumeration of Congressional powers
Took up Article VII, Section 1 (enumeration of Congressional powers).

Agreed, nem con, to power to lay and collect taxes, regulate international and interstate commerce, coin money, regulate foreign coin, and fix standards of weights and measures.

Approved (6 – 5) adding “and post roads” to power to “establish Post offices”

Agreed (9 – 2) to strike out the words “and emit bills” in the 8th clause of Article VII, Section 1.

Madison’s Notes of the Debates

August 17: Deliberation of the Enumeration of Congressional powers
Resumed discussion of Article VII, Section 1 (enumeration of Congressional powers).

Agreed (7 – 3) to elect Treasurer by joint ballot (New Jersey not voting).

Agreed to “establish inferior courts, and make rules on captures.”

Agreed (7 – 3) to “define and punish piracies and felonies committed on the high seas.”

Agreed similarly to “counterfeiting the securities and current coin of the United States, and offenses against the law of nations.”

Changed (8 – 1) the clause Congress shall “make” war to Congress shall “declare war.”

New Jersey lacked a quorum today.

“Separate questions having been taken on the 9, 10, 11, 12, and 14 clauses of the 1st Section, 7 article as amended. They passed in the affirmative.”

Madison’s Notes of the Debates

August 18: Creation of Committee of 11
Referred a list of suggested additional Congressional powers to the Committee of Detail.

Agreed (6 – 4 – 1) to a Committee of 1 per state, chaired by William Livingston, to consider assumption of state debts.

Agreed (9 – 2) to meet daily, except Sunday, from 10:00 till 4:00, with no earlier adjournment allowed. Continued discussion of Article VII, Section 1 (enumeration of Congressional powers).

Agreed to add “and support” to power to raise armies and agreed to strike “build and equip” in favor of “provide and maintain” navy.

Agreed to add power to make rules for government and regulation of land and naval forces.

Considered different motions giving authority over militia and referred them (8 – 2 – 1) to a committee.

Madison’s Notes of the Debates

August 20: Article VII and the Issue of a Bill of Rights
Pinckney introduces a bill of rights and the list of 12 is sent to the Committee of Detail.

Included in this list are liberty of the press, restrictions on the removal of the Writ of Habeus Coprus, subordination of the military to the civil power, and that “no religious test or qualification shall ever be annexed to any oath of office under the authority of the U. S.”

G. Morris proposes the foundations for a Presidential Cabinet:

Council of State, Domestic Affairs, Commerce and Finance, Foreign Affairs, War, and Marine.

These are referred to the Committee of Detail.

Returned to Article VII, Section 1 (enumeration of Congressional powers)

Necessary and Proper Clause passed.

Defeated (8 – 3) Mason‘s proposal to give Congress power to enact sumptuary laws.

Took up Article VII, Section 2 (defining treason).

After debate and numerous amendments, Section 2 was approved.

Took up Article VII, Section 3 (direct tax, House apportionment and census).

Agreed (9 – 2) to have first census within 3 years.

Madison’s Notes of the Debates

Scene 2: The Slavery Question and the Creation of the Judiciary
August 21: Report of the Committee of 11
Heard a report from the Committee of State Debt Assumption and Militia Regulation, and laid it on the table.

Included assuming debts incurred “for the common defense and general welfare.”

Resumed discussion of Article VII, Section 3, and agreed to it (10 – 1).

Continued discussion of Article VI, Section 12 (origination of bills).

Defeated (8 – 2 – 1) motion to apportion direct taxes to the number of representatives pending the first census.

Took up Article VII, Section 4 (no export taxes by States).

Defeated (7 – 3) move to allow export taxes for revenue only.

Defeated (6 – 5) motion to permit export taxes with 2/3 majority vote.

Approved Section (7 – 4).

Took up Article VII, Section 4 (no interference with the slave trade). “The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants, of every age, sex and condition… including threefifths of all other persons.”

L. Martin, supported by Mason, suggests that the slave trade be prohibited or at least taxed. He argued that the importation of slaves “was inconsistent with the principles of the revolution.”

Rutledge rejoined, “Interest alone is the sovereign principle with Nations.”

Ellsworth: “The morality or wisdom of slavery are considerations belonging to the States themselves.”

Adjourned.

Madison’s Notes of the Debates

August 22: Article VII, Section 4: Slavery
Resumed discussion of Article VII, Section 4. C. Pinckney stated, “if slavery be wrong, it is justified by the example of all the world.” Rutledge warns that North Carolina, South Carolina and Georgia will not sign the Constitution without certain slavery protection clauses.

Dickinson considered the importation of slaves “as inadmissible on every principle of honor and safety.”

Randolph added that he “could never agree to the clause as it stands” and urged that the entire section be referred to a committee to seek a compromise solution.

Voted (7 – 3 – 1) to commit Article VII, Sections 4 and 5 to an 11-member committee chaired by Livingston which included Dickinson and L. Martin and excluded C. Pinckney and Rutledge. Voted (9 – 2) to commit Section 6 to the same committee.

Took up Article VII, Section 2 (prohibit bills of attainder and ex-post facto laws).

Agreed (7 – 3 – 1)

The report of the Committee of 5 was postponed (6 – 5).

The report of the Committee of 11 on Assumption of State Debts was taken up.

After brief discussion it was agreed (11 – 0), “The Legislature shall discharge the debts and fulfill the obligations of the United States.”

Madison’s Notes of the Debates

August 23: Discussion of Articles VII-IX
Took up Article VII, Section I (powers of Congress).

After considerable discussion and minor alterations agreed to section.

Passed Article VII, Section 7—no titles of nobility— nem con.

Took up Article VIII.

Approved adding a prohibition against Federal officers accepting foreign titles or gifts without consent of Congress.

Also accepted a restatement of Supremacy Clause.

Took up Article IX, (Senate treaty power and appointment of Judges and ambassadors) and postponed.

Took up Article VII, Section 1 (calling up militia to execute laws), amended and approved it.

Madison again, supported by Wilson and C. Pinckney, proposed a motion to restore Congressional veto power over State laws, defeated (6 – 5).

Agreed to revised Article VII, Section 1 (debts).

“The Legislature shall fulfill the engagements and discharge the debts of the United States, and shall have the power to law and collect taxes, duties, imposts, and excises.”

Resumed discussion of Senate power to make treaties, appoint Ambassadors and Judges, and referred proposal to the Committee of Five.

Madison’s Notes of the Debates

August 24: Committee of 11 reports on slavery
Heard a report from the Livingston Committee on Slave Trade Article VII, Sections 4, 5, and 6 (no interference with slave trade, capitation taxes in proportion to census, no navigation acts without 2/3 vote in each House).

Committee recommended prohibiting interference with slave trade until 1800, keeping Section 5, striking section 6 and permitting a tax to be imposed on migration.

Agreed to reconsider debt provisions and interstate commerce clause (Article VII, Section 1).

Took up Article IX, Sections 2 and 3 (controversies among states, controversies arising from conflicting land grants).

Voted (8 – 2) to strike out both sections.

Took up Article X, Section 1 (Executive).

Agreed on one Executive but defeated four different methods of electing the President including the people (9 – 2) and by electors (6 -5).

Took up Article X, Section 2 (Executive powers and duties).

Ordered adjournment at 3 o’clock for the future.

Madison’s Notes of the Debates

August 25: The Slavery Question (see also July 23, August 8, 21, 22, 26, and 29)
Approved (10 – 1) debt provision.

Defeated (10 – 1) motion to include common defense and general welfare clause in Article VII, Section 1.

Took up Article VII, Section 4 (slave trade).

Agreed (7 – 4) to change from 1800 to 1808 the prohibition on Congress (New Jersey, Pennsylvania, Delaware, and Virginia voting against).

Approved import tax not to exceed $10.00 per person.

Madison stated, “twenty years will produce all the mischief that can be apprehended from the liberty to import slaves.” He also “thought it wrong to admit into the Constitution the idea that there could be property in men.”

Approved (7 – 4) “The migration or importation of such persons as the several States now existing shall think proper to admit shall not be prohibited by the Legislature prior to the year 1808.”

Approved Article VII, Section 5 as reported.

Postponed Article VII, Section 6.

Defeated (6 – 3 – 1) motion allowing appointment to Federal offices by State Executives in Article X, Section 2.

Continued on Executive powers in Article X.

Madison’s Notes of the Debates

August 27: Articles X and XI discussed
Continued on Executive powers in Article X.

Agreed (6 – 2) that President would be commander-in-chief of the militia when called into the actual service of the United States.” (Massachusetts, New Jersey and North Carolina absent).

Began discussion of Article XI (judicial powers).

Took up Article XI, Section 1: “The Judicial Power of the United States…”

Agreed to Johnson‘s motion to add “both in law and equity” after the words “United States.” Three absent.

Approved Section 1 (6 – 2)

Took up Article XI, Section 2.

Defeated (7 – 1) removal of justices by Executive on request of Legislature.

Approved Section 2 (6 – 2).

Took up Article XI, Section 3.

Postponed clause considering the impeachment of Judges.

Discussed distinction between original and appellate jurisdiction.

Agreed to add, “to which the United States is a Party” to “controversies.”

Approved (8 – 2) several other perfecting amendments.

Johnson moved to insert the words “this Constitution and the” before the word “laws” in “The jurisdiction of the Supreme Court shall extend to all cases arising under the laws passed by the Legislature of the United States.” This passed nem con on the understanding that the jurisdiction was “limited to cases of a judiciary nature.”

Massachusetts, New Jersey, and North Carolina experienced difficulties meeting quorum requirements.

Madison’s Notes of the Debates

August 28: Articles XI-XV discussed
Heard a report from August 25th committee (regulation of commerce).

Continued discussion of Article XI.

Took up Article XI, Section 3 (appellate jurisdiction).

Approved Section 3 (9 – 1).

Took up Article XI, Section 4 (local trial by jury and Writ of Habeas Corpus).

Amended to provide for crimes committed outside any state.

Agreed (7 – 3) to add that the privilege of the writ of Habeas Corpus shall not be suspended, “unless where in cases of Rebellion or invasion the public safety may require it.”

Agreed to Section 4.

Agreed to Article XI, Section 5 (limit punishment under impeachment).

Took up Article XII (limits on State powers).

Agreed (8 – 1 – 1) to add prohibition on emitting bills of credit, or making anything but gold or silver legal tender (Maryland voting against).

Agreed (7 – 3) that no State could pass bills of attainder or ex post facto laws.

Defeated (8 – 3) prohibiting laying of embargoes.

Agreed to Article XII as amended.

Took up Article XIII (additional prohibition on States).

Agreed (6 – 5) to prohibit States from taxing exports as well as imports without consent of Congress.

Agreed (9 – 2) that net receipts of State taxation of imports and exports go into Federal Treasury.

Agreed to Article XIII.

Took up Article XIV (mutual privileges and immunities).

Approved it (9 – 1 – 1).

Took up Article XV (extradition): “Amy person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executing power of the State from which he fled, be delivered up and renewed to the State having jurisdiction of the offence.” Soon after, “high misdemeanor” replaced by “other crime.”

Butler and C. Pinckney suggest that the extradition clause be extended to included run away slaves. They argue that “fugitive slaves (should) be delivered up like criminals.”

Agreed to Article XV, nem con.

Adjourned.

Madison’s Notes of the Debates

August 29: Articles XVI-XVII deliberated
Took up Article XVI (full faith and credit).

Heard motion to establish uniform bankruptcy laws.

Committed both Article XVI and motion to Committee on State Commitments with 5 members, chaired by Rutledge.

Took up recommendation by the Livingston Committee on Slave Trade to strike out Article VII, Section 6 (2/3 vote needed to approve Congressional regulation of international and interstate commerce).

Committee report approved (7 – 4).

Returned to Article XV and passed a fugitive slave clause (11 – 0) to be added at the end of the Article: “if any Person bound to service or labor in any of the United States shall escape into another State, he or she shall not be discharged from such service or labor in consequence of any regulations subsisting in the State to which they escape; but shall be delivered up to the person justly claiming service or labor.”

Took up Article XVII (admission of new states) and passed (6 – 5).

Madison’s Notes of the Debates

Scene 3: Adoption of the Report; Creation of Brearly Committee
August 30: Articles XVII-XXI adopted
Continued discussion on Article XVII (admission of new states).

Agreed (8 – 3) to permit the admission of new States on equal terms, prohibit dividing or combining states without consent of State Legislatures, and grant Congress authority to govern public lands, territory or other property of the United States.

Took up Article XVIII (guarantee of republican form of government): “The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of the Legislature, against domestic violence.”

Dropped “foreign” and retained “domestic violence” over “insurrection” (6 – 5).

Amended and agreed (9 – 2).

Took up Article XIX (amending process) and agreed.

Took up Article XX (oath for officers of the government).

Added “or Affirmation.”

Added, “no religious test shall ever be required,” which passed nem con.

Agreed (8 – 1 – 2) to Article XX.

Discussed Article XXI (mode of ratification of the Constitution): “The ratification of the Conventions of ____ States shall be sufficient for organizing this Constitution.”

Madison’s Notes of the Debates

August 31: Discontent within Agreement
Continued discussing Article XXI (mode of ratification of the Constitution)

Shall the blank be filled with the number 7, 8, 9, 10, 11 or 13?

Agreed (9 – 1), to add “between the said states,” to limit effect of ratification to states actually ratifying.

Rejected (6 – 4) attempt to overturn provision requiring ratification by specially elected conventions rather than ratification by State Legislatures.

Debated number of states required to secure ratification of the Constitution.

Defeated (9 – 1) motion requiring all 13 states to ratify.

Defeated (7 – 4) motion requiring 10 states to ratify.

Agreed (8 – 3) to motion requiring 9 states to ratify.

Agreed (10 – 1) to Article XXI as amended.

Took up Article XXII (Authorization of the Constitution by Confederation Congress).

Agreed (8 – 3) to strike provision requiring Confederation Congressional approval of the Constitution.

Defeated (7 – 4) proposal, in effect, permitting Confederation Congress to rewrite the Constitution.

Defeated (8 – 3) motion to postpone discussion on Article XXII.

Agreed (10 – 1) to Article XXII as amended.

Discussed Article XXIII (transition from Confederation Government to Constitutional Government).

Agreed with amendments.

Took up Committee of 11 Report of Article VII, Section 4 (Export taxes and duties).

Agreed to provision not to give preference to one state over another.

Agreed (8 – 2) to proposal to prohibit requiring ships bound for one state to enter, clear, or pay duties in another

Agreed on uniformity clause.

Concluded discussion of Committee of Detail Report.

Referred all leftover proposals to a Committee of one delegate from each state:

Gilman, King, Sherman, Brearly, G. Morris, Dickinson, Carroll, Madison, Williamson, Butler, Baldwin

This was known as the Brearly Committee.

Madison’s Notes of the Debates


Act IV:
The End is in Sight


Scene 1: The Brearly Committee Report
September 1: The Final Push
Heard initial report from Brearly Committee.

Recommended alteration in Article VI, Section 9: Ineligibility of Federal Legislators to other Federal office.

Received the report of the August 29th Committee, the Rutledge Committee.

Recommended alteration in Article XVI, concerning bankruptcies.

Appearance of “Full Faith and Credit clause.”

New Jersey and Pennsylvania did not meet quorum requirement.

Approved motion to adjourn (7 – 1 – 1).

Madison’s Notes of the Debates

September 3: Article XVI revisited
Took up Article XVI (Full Faith and Credit clause).

Agreed to the clause (6 – 3) (New Hampshire not voting).

Agreed to Article XVI as amended (9 – 1).

Took up Article XVI, uniform bankruptcy laws and agreed (9 – 1).

Took up Article VI, Section 9 (ineligibility of Federal Legislators to other Federal office).

Defeated motion to adjourn (6 – 4).

Agreed (5 – 3 – 1) to Article VI, Section 9 (New Jersey not voting).

Delaware did not meet quorum requirement.

Madison’s Notes of the Debates

September 4: Brearly Committee reports 9 propositions
Discussed 4 out of 9 proposals submitted by Brearly Committee.

Approved Brearly Committee Proposal #1 to amend Article VII, Section 1 giving Federal Legislature authority to lay and collect taxes, duties and imposts and provide for “the common defense and general welfare.”

Agreed to Proposal #2 to amend Article VII, Section 1, interstate commerce clause, to include Congressional regulation of commerce “with the Indian tribes.”

Postponed Proposal #3 to amend Article IX, Section 1. The Proposal read:

“The Senate of the United States shall have the power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.”

Took up Proposal #4 to amend Article X, Section 1 (Election of Executive).

A.) And with the Vice President, “He shall hold his office during the term of 4 years.”

B.) “Each state shall appoint in such a manner as its Legislature shall direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature.”

C.) “The person having the greatest number of (Electoral College) votes shall be the President.”

D.) “If no person have a majority, then from the 5 highest on the list the Senate shall choose by ballot the President.”

E.) “And in every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-president.”

F.) “The Legislature may determine the time of choosing and assembling the Electors, and the manner of certifying and transmitting their votes.”

Received Proposal #5: Qualifications for President including a “natural born Citizen” clause.

Received Proposal #6: The Vice-President clause.

Received Proposal #7: Advice and Consent of the Senate clause.

Received Proposal #8: Opinion in Writing clause.

Received Proposal #9: Removal from Office clause.

Approved (7 – 3) to motion to postpone consideration of Proposals #4-9.

Madison’s Notes of the Debates

September 5: Brearly Committee reports 5 more propositions
Considered Proposals #10, 11, 13 & 14, to amend Article VII, Section 1.

#10: Added “and grant letters of marquee and reprisal” to the war powers clause, nem con.

#11: Limited military appropriations to two years, nem con.

#13: Granted exclusive jurisdiction over Federal land to Congress, nem con.

#14: Provided limited patents to promote science and arts, nem con.

Agreed (9 – 2) to postpone Proposal #12 concerning Article IV, Section 5:

A reconsideration of the Connecticut Compromise, namely, to now permit the Senate to amend money bills that originate in the House.

Gerry gave notice that he wanted to reconsider Articles XIX (amending), XX (oath), XXI (ratification), and XXII (blessing of Confederation Congress).

Returned to consideration of the 6 proposals left over from the September 4th submission of 9 proposals by the Brearly Committee (#4, 5, 6, 7, 8, 9).

Extensive discussion of Proposal #4 to amend Article X, Section 1 (election of Executive).

Defeated several motions concerning the election of the Executive.

Defeated (7 – 3 – 1) motion to overcome non-majoritarian outcomes in the Electoral College in the whole Congress instead of just the Senate.

Defeated (9 – 2) motion to limit choice in the Senate to the top 3 candidates instead of the top 5 candidates.

Wilson: “This subject… is in truth the most difficult of all of which we have had to decide.” Randolph: “We have in some revolutions of this plan made a bold stroke for monarchy. We are now doing the same for an aristocracy.” Mason agreed.

Agreed to request Congress to pay Convention expenses

Madison’s Notes of the Debates

September 6: Brearly Committee and the Electoral College
Continued discussion of proposal #4 to amend Article X, Section 1 (election of Executive).

Agreed (10 – 1) that the President and Vice-president be elected to a term of four years.

Agreed (10 – 1) after discussion and amending to authorize the Senate to choose the Executive from top 4 candidates.

Agreed (10 – 1) to a motion by Williamson to substitute the House, with voting by states, for the Senate, or the whole Legislature, in electing the Executive from the top 4 candidates in the event of a break down of the Electoral College. Mason liked this move because it reduced “the aristocratic influence of the Senate.”

Agreed Senate shall choose the Vice-president in the event of a tie for the Vice-president.

Madison’s Notes of the Debates

September 7: Discussion on the Presidency
Continued discussion on proposal #4 to amend Article X, Section 1 (election of Executive).

Agreed (8 – 3) on Electoral College with majority of electoral votes needed for the election of the Executive.

Decided (10 – 1) that the House, rather than the Senate, shall decide in such circumstances but each State shall have one vote.

Approved (6 – 4 – 1) motion to let Legislature determine who shall act in cases of disability of President and Vice President.

Took up Proposal #5: qualifications of the President.

Agreed (nem con) that the President should be a natural born citizen, resident for 14 years and be 35 years of age.

Took up Proposal #6: Vice-president as President of Senate.

Agreed (8 – 2) to Vice-president as President of the Senate (North Carolina not voting).

Took up proposal #7: powers of the Executive.

Defeated (10 – 1) motion to include House in treaty making.

Agreed to Presidential nomination and Senate concurrence of ambassadors, ministers, consuls, and other officers.

Approved treaty making with “the advice and consent” of 2/3 of Senate present.

Defeated (8 – 3) motion for Council of Advisors to President.

Madison’s Notes of the Debates

September 8: Treaties, Impeachment, and Money Bills
Resumed discussion on Proposal #7 the powers of the Executive.

Reconsidered treaty power and engaged in lengthy discussion of role of the Senate especially the 2/3 approval rule.

Defeated (6 – 5) Sherman‘s motion that “no Treaty be made without a mjority of the whole number of the Senate.”

Agreed (8 – 3) to Brearly Committee Proposal #8 (President can request opinions of government officials in writing).

Took up Proposal #9: impeachment of the President.

Mason wanted to add “maladministration” to “treason and bribery.”

Agreed (8 – 3) to replace “maladministration” with “other high crimes and misdemeanors against the State” and then “United States.”

Defeated (9 – 2) motion to strike Senate as body to judge on impeachment.

Agreed (11 – 0) to addition of Vice-president and other Civil Officers as subject to impeachment.

Returned to Proposal #12: Consideration of Money Bills.

Agreed (9 – 2) to Proposal #12: origination of money bills in the House, subject to Senate amendment (This vote removes that feature of the Connecticut Compromise deemed vital by Mason, Gerry and Randolph).

Balloted for a Committee of Style (Johnson, Hamilton, G. Morris, Madison, and King) “to revise the style of and arrange the articles which had been agreed to.”

Defeated (6 – 5) motion supported by Madison and Hamilton to increase the size of House membership.

Madison’s Notes of the Debates

September 10: Randolph articulates his difficulties
Reconsidered (9 – 1 – 1) Article XIX of the Committee of Detail report: Process to Amend the Constitution (2/3 of state legislatures requesting an amendment, the Congress shall call a Convention).

Madison wondered: “How was a Convention to be forced? By what rule decide? What is the force of its acts?”

Agreed (9 – 1) to permit 2/3 House and 2/3 Senate to request an amendment and 3/4 of the states to approve.

Agreed (11 – 0) that an amendment proposal becomes part of the Constitution upon ratification of 3/4 of the State Legislatures or State Conventions.

Rutledge secured exclusion of any alteration in the slavery provisions from the amendment process until the year 1808.

Agreed (7 – 3 – 1) to reconsider Article XXII of the Committee of Detail Report.

Approved (11 – 0) Article XXI.

This Constitution becomes effective on the approbation of 9 state ratifying conventions and “binding and conclusive” on those states “assenting thereto.”

Took up Article XXII.

“Mr. Randolph took his opportunity to state his objections to the system.” Randolph and Gerry explain their reservations about signing the Constitution “if approbation by Congress” isn’t required.

Rejected nem con a motion to require the approval of the Constitution by the Confederation Congress.

Committee of Detail Report, as revised, and Brearly Committee report, as revised, sent to the Committee of Style.

Madison’s Notes of the Debates

Scene 2: The Committee of Style Report - A Preamble and 7 Articles
September 11: How about this and how about that?
Convention met and adjourned because the Committee of Style was not ready with their report.

Madison’s Notes of the Debates

September 12: Is this different from Committee of Detail report?
Committee of Style reported a 7 Article document; it was read by paragraphs.

This document is preceded by a preamble, which begins, “We the People of the United States, in order to form a more perfect union” rather than “We the people of the states of New Hampshire, etc…”

Took up Article I, Section 7.

Agreed (6 – 4 – 1) to amend section to include 2/3 instead of 3/4 for Congress to override an Executive veto.

Mason and Gerry call for a prefatory Bill of Rights; motion is defeated (10 – 0) (Massachusetts absent).

Madison’s Notes of the Debates

Scene 3: The Discussion of the Committee of Style Report
September 13: Last minute additions
Resumed consideration of Report of Committee of Style.

Took up Article I and focused on Sections 2 and 7.

Agreed unanimously to substitute “service” for “servitude.”

Agreed (7 – 3) to allow state duties to defray costs of storage and inspection.

Mason bemoaned the absence of “a power to make sumptuary regulations.”

Named Mason, Franklin, Dickinson, Johnson, and Livingston to a committee to suggest measures for encouraging economy, frugality, and American manufactures (this committee never made a report).

Johnson from the Committee of Style reported a substitute for Articles XXII and XXIII of the Committee of Detail Report.

Madison’s Notes of the Debates

September 14: The Necessary and Proper clause
Took up Article I, Sections 3, 4, 5, and 6.

Agreed to sections with minimal debate

Took up Article I, Section 8 (Powers of Congress).

Agreed (8 – 3) to strike election of Treasurer by Legislature.

Agreed (11 – 0) to add uniformity requirement to taxing power.

Madison, Randolph, Wilson, G. Morris, and Mason debate meaning of “necessary and proper clause.”

Defeated (6 – 4 – 1) motion to give Congress power to establish a university.

Pinckney, Gerry, and Sherman debate whether Congress has the power to interfere with freedom of the press.

Defeated (6 – 5) motion to insert “the liberty of the press shall be inviolably preserved.”

Took up Article I, Section 9 (Restraints on Congressional powers).

Defeated Mason‘s motion “that an account of the public expenditures should be annually published.”

Adopted Madison‘s suggestion nem con to change “annual” publications to “from time to time.”

Agreed to the Section with minimal debate.

Took up Article I, Section 10 (Restraints on the powers of the States).

Gerry‘s motion to extend to the Federal Government “the restraint put on the states from impairing the obligations of contracts” failed to obtain a second.

Madison’s Notes of the Debates

September 15: How about a Second Convention?
The Convention resumed discussion on the report from the Committee of Style.

Decided (6 – 4) an address from the Convention to the people was “unnecessary and improper.” (South Carolina absent)

Defeated (6 – 5) an attempt to add another member for Rhode Island in the House.

King threatened to withhold his signature to the Constitution if this proposition passed.

Passed (10 – 1) an attempt to add another member for North Carolina in the House.

Took up Article I, Section 10 (Restraints on the powers of the States).

McHenry, Carroll, Langdon, Mason, G. Morris, and Madison.

Does the regulatory power of Congress restrain state commerce authority?

Agreed (6 – 4 – 1) that “no state shall lay any duty on tonnage with out the consent of Congress.”

Took up Article II, Section 1 (General structure of Executive Office).

Agreed (7 – 4) that the President shall not receive “any other emolument from the United States or any of them” during his term of office.

Took up Article II, Section 2 (Powers of the President).

Defeated (8 – 2 – 1) a motion to extend the power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment” to include “cases of treason.”

Agreed (after debate, nem con) to G. Morris‘s “Inferior Officer’s” clause (Allows Congress to by pass the “advice and consent of the Senate” and vest/delegate the appointment of “inferior officers” to the President alone, the Courts of Law alone or the Heads of Departments alone). [This motion was initially defeated (5 - 5 - 1).]

Took up Article III, Section 2 (Trial by jury).

Defeated (nem con) an attempt to extend the “trial by jury” clause covering criminal cases to include civil cases.

Took up Article IV, Section 2 (Fugitive Slave clause).

Struck out “no person legally held to service or labor in one state escaping into another” and replaced it with “no person held to service or labor in one state, under the laws thereof, escaping into another.” (emphasis added)

Addition of “under the laws thereof” removes the idea “that slavery was legal in a moral view.”

Agreed to Article IV, Section 3 (Admittance of new states).

Agreed to Article IV, Section 4 (Republican guarantee).

Took up Article V (Amending the Constitution).

Agreed (nem con) that Congress shall call a convention on the application for amendments by 2/3 of the State Legislatures.

Agreed (8 – 3) that a state cannot be deprived of its equal suffrage in the Senate without its own consent.

Unanimously rejected a call by Randolph, Mason, and Gerry “that amendments to the plan might be offered by the States Conventions, which should be submitted to and finally decided on by another general convention.”

Approved (10 – 0) the document as amended (North Carolina did not meet quorum call).

Madison’s Notes of the Debates

Scene 4: The Signing of the Constitution
September 17: Constitution signed
The Constitution was presented and read aloud; several delegates expressed concerns yet restrained their reservations in order to achieve a sense of unanimity. Changed the base of representation in the House of Representatives from 1:40,000 to 1:30,000 with the support of Washington. Randolph‘s prediction: “Nine states will fail to ratify the plan and confusion must ensue.”

Voted (10 – 1) to deposit the Journals (Secretary Jackson‘s notes) with the President, subject to the orders of Congress.

Signed the Constitution and adjourned. Mason, Randolph, and Gerry refused to sign; Read signed Dickinson‘s name in his absence.“The business being thus closed, the Members adjourned to the City Tavern, dined together and took a cordial leave of each other.”

Madison’s Notes of the Debates

Contents

Introduction

The year was 1787. The place: the State House in Philadelphia. This is the story of the framing of the federal Constitution.

The Convention

Read the four-act drama and day-by-day summary by Gordon Lloyd, as well as Madison’s Notes on the Convention.

Interactive Map of Historic Philadelphia in the Late 18th Century

Learn about historic Philadelphia and where the founders stayed, ate, and met.

View Interactive

TeachingAmericanHistory.org is a project of the Ashbrook Center at Ashland University

401 College Avenue | Ashland, Ohio 44805 (419) 289-5411 | (877) 289-5411 (Toll Free)

info@TeachingAmericanHistory.org