The Constitutional Convention as a Four Act Drama
The Alternative Plans
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.
|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.|
|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.|
|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.|
|Resolution 7:||Confusing day on the Executive. Agreed to selection of Executive by the National 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.
|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.|
|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.”|
|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.|
|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.|
|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.”|
|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 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.”|
|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.|
|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.|
Received and agreed to vote on Amended Virginia Plan with 19 resolutions.
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.”
The Connecticut Compromise
|Resolution 1 and 2:||Revised. Debated the issue of a two-branch legislature.|
|Resolution 2:||Revised. 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.”
|Resolution 2:||Revised. 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.”|
|Resolution 3:||Revised. 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.”|
|Resolution 3b:||Revised. 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.”|
|Resolution 3c:||Revised. Defeated a motion to permit First House to determine its pay (7 – 2 – 2). New York and Georgia divided. New Jersey and Pennsylvania opposed.|
|Resolution 3d:||Revised. Defeated a move to strike the National Treasury as the source of pay (5 – 4 – 2). New York and Georgia divided.|
|Resolution 3:||Revised. Agreed on minimum age of 25 for members of House (7 – 3 – 1). New York divided.|
|Resolution 3:||Revised. Discussed making members ineligible for another 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.|
|Resolution 3:||Revised. Defeated (5 – 5 – 1) a motion by Butler to provide House members adequate compensation from the National Treasury. Georgia divided.|
|Resolution 3:||Revised. Agreed (8 – 2 – 1) to strike ineligibility of House members for other Federal Offices. Massachusetts divided. Pennsylvania and Georgia voted “no.”|
|Resolution 4:||Revised. Agreed (5 – 5 – 1) to change “Second Branch of the National Legislature” to “Second Branch of the United States Legislature.”|
|Resolution 5:||Revised. Agreed (9 – 2) to election of the Second Branch by State Legislatures. Pennsylvania and Virginia voted “no.”|
|Resolution 4b:||Revised. 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.”
Ellsworth was practical.
|Resolution 4:||Revised. 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).|
|Resolution 4:||Revised. Agreed (10 – 1) that members should “receive a compensation for the devotion of their time to the Public Service.” South Carolina voted “no.”|
|Resolution 4:||Revised. Disagreed (6 – 5) that State Treasuries should pay Senators.|
|Resolution 4:||Revised. 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.”
|Resolution 6:||Revised. Postponed.|
|Resolution 7:||Revised. Discussed “the right of suffrage in the first branch.”|
|Resolution 8:||Revised. 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.”
|Resolution 7:||Revised. Resumed discussion on representation in the First Branch.|
|Resolution 8:||Revised. 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.”
|Resolution 7:||Revised. Approved (6 – 4 – 1) proportional representation in the House. Maryland divided. Connecticut in favor.|
|Resolution 7:||Revised. 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.”
|Resolution 8:||Revised. 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 between 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.”
|Resolution 8:||Revised. 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.|
|Resolution 8:||Revised. Voted to commit the question (9 – 2).|
|Resolution 8:||Revised. 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 Baldwin. Ellsworth: 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.
- Representation in First Branch by population (1:40,000).
- Representation in Second Branch to give each state an equal vote.
- Money Bills to originate in First Branch and not subject to amendment in Second Branch.
Gerry’s 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.”
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.”
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.”
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.”
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.
Confederation Congress passes Northwest Ordinance.
How does a 5 – 4 – 1 vote represent a compromise? Was it a “mere compromise,” or a “principled compromise?”
|Resolution 6b:||Revised. Began consideration of the proposal to give Congress the authority in all cases to which the separate states are incompetent.|
|Resolution 6b:||Revised. 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.|
|Resolution 6c:||Revised. 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 with the Supremacy Clause.|
|Resolution 6c:||Revised. 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.|
|Resolution 6c:||Revised. 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).|
|Resolution 9:||Revised. Agreed to reconsider ineligibility of Executive (8 – 0) (New Jersey and Georgia not voting). Agreed to Executive Veto with 2/3 override.|
|Resolution 11:||Revised. 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).|
|Resolution 12-16:||Revised. 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.|
|Resolution 9:||Revised. New Jersey and Georgia present and voting. Massachusetts continues to be divided. 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.|
|Resolution 9:||Revised. 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.|
|Resolution 9:||Revised. Made Executive removable by impeachment (8 – 2). Franklin saw impeachment as the republican peaceful alternative to assassination under despotism.|
|Resolution 9:||Revised. Agreed on fixed compensation, nem con. Agreed (9 – 1) to be paid out of National Treasury.|
|Resolutions 10, 11:||Revised. 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.
|Resolution 17-19:||Revised. 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.|
|Resolution 9:||Revised. 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 the next day.|
|Resolution 9:||Revised. Reconsidered choice of Executive by electors. Approved (7 – 4) appointment by national legislature.|
|Resolution 9:||Revised. Resumed discussion on election of the Executive. Madison compares and contrasts the four proposals for electing the Executive.|
|Resolution 9:||Revised. 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.
Debates in the Federal Convention of 1787
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.|
The Committee of Detail Report
Agreed (10 – 0) to Preamble and Articles I and II.
Took up Article III (two-branch 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).
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.”
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 motion to require 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.
Randolph objects to defeat of Article IV, Section 5 (Money Bills).
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. “The motion of Mr. Pinckney was rejected by so general a no, that the States were not called.” 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).
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 on Monday.
Reconsidered Article IV, Section 2 (House age and citizenship). Defeated (7 – 4) Hamilton’s motion to eliminate seven-year citizenship requirement. Butler opposed this effort to “increase” the influence of “foreigners into our public councils.” Connecticut, Pennsylvania, Maryland, and Virginia voted to support Hamilton’s motion. Defeated nine-year citizen requirement (8-3), and defeated five-year citizen requirement (7-3-1). Pennsylvania divided. 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). Randoph moved to reinstate exclusive power over money bills to the House. Mason and Randolph argued that a revolutionary principle was at stake. Madison and Blaire, also from Virginia, saw no principle at stake. Dickinson urged that “experience” be the guide. Washington supported Randolph and Mason on prudential grounds. Defeated (7-4) the motion to reinstate original agreement on money bills. Virginia voted “yes.” Delegates voted (8-3) that the Committee on Detail report on money bills be accepted. Virginia voted “no.”
Took up Article VI, Section 9 (ineligibility of members of legislature to other Federal Offices). Vote was 5-5-1. Georgia was divided on this first vote. Postponed until powers of Senate were determined.
Amended Article VI, Section 10 (legislative pay ). Voted 9-2 that the National Treasury rather than State Legislatures should pay the representatives. Massachusetts and South Carolina voted “no.” Agreed that pay be ascertained by law.
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.) (See also 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 (Council of Revision) they become law. Only Delaware, Maryland, and Virginia in favor of the Council of Revision. Thus 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. Pensylvania divided. Agreed (9 – 2) to 10 days instead of 7 for the President to return bills. New Hampshire and Massachusetts “no.”
Took up Article VII, Section 1 (enumeration of Congressional powers). The Committee of Detail tried to forge a middle ground between the open-ended grant of powers under the various versions of the Virginia Plan and the very specific listing of powers under the Articles of Confederation and the New Jersey Plan. Thus they recommended an “enumeration of powers” as well as a “necessary and proper” clause. Hamilton was absent.
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 the power to “establish Post offices.” Pennsylvania “no,” and Virginia “yes.” Agreed (9 – 2) to strike out the words “and emit bills” in the 8th clause of Article VII, Section 1. New Jersey and Maryland “no.”
Resumed discussion of Article VII, Section 1 (enumeration of Congressional powers).
Agreed (7 – 3) to elect Treasurer by joint ballot (Delaware 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.” Virginia votes “no.” Agreed similarly to “counterfeiting the securities and current coin of the United States, and offenses against the law of nations.”
Changed (7 – 2) the clause Congress shall “make” war to Congress shall “declare war.” New Jersey and Massachusetts absent. Hamilton was also absent.
The Framers apparently 1) wanted to avoid the idea that it is legitimate for a democratic republic, expressing its opinion through the Congress, to initiate, or MAKE, war but at the same time recognize the legitimate need for a democratic republic, through the executive branch, to defend itself from sudden invasion; 2) believed that “declare war” is more compatible than “make war” with the idea of a just war; and 3) they did not want Congress to be in the business of the day-to-day operations of making war in the sense of carrying out the specifics of military policy. Thus 4) we must ask the question where did MAKE WAR go when the Framers substituted DECLARE WAR? Did MAKE disappear or become CONDUCT or did MAKE go somewhere else?
“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.”
Agreed (9 – 2) to meet daily, except Sunday, from 10:00 till 4:00, with no earlier adjournment allowed. Pennsylvania and Maryland voted “no.”
Continued discussion of Article VII, Section 1 (enumeration of Congressional powers). Agreed to add “and support” to the 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. Connecticut and New Jersey voted “no.” Maryland divided.
Pinckney introduced a list of 12 rights. Included are references to liberty of the press, the writ of Habeus Coprus, and that “no religious test or qualification shall ever be annexed to any oath of office under the authority of the U. S.” They are sent to the Committee of Detail.
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. Mason did not carry Virginia.
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. South Carolina and Georgia “no.”
Heard a report from the Committee of State Debt Assumption and Militia Regulation, and laid it on the table.
Included in the Committee of 11 Report was the clarification that debts would be incurred only “for the common defense and general welfare.” This was the first appearance of these two clauses.
Resumed discussion of Article VII, Section 3, and agreed to it (10 – 1). Delaware voted “no.”
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. North Carolina divided.
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, Clauses 2 and 3 (no interference with the slave trade). Congress cannot tax or prohibit “the migration or importation of such persons as the several States shall think proper to admit.”
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.”
Three clearly identifiable positions have emerged on the issue of the slave trade: 1) the slave trade violates American principles. Thus ban, or at least discourage, the slave trade because it “was inconsistent with the principles of the revolution and dishonorable to the American character.” This was the position articulated by Luther Martin of Maryland on this day and supported by the Virginia delegation as well as delegates from New Hampshire, Delaware, and Pennsylvania. 2) Rutledge best represented the second position. This position was supported by the other delegates from South Carolina, North Carolina, and Georgia delegations: “Religion and humanity had nothing to do with this question — Interests alone is the governing principle with Nations — The true question at present is whether the Southern States shall or shall not be parties to the Union.” 3) The third position was that occupied by Connecticut. Mr. Ellsworth summed up the issue thus: He was in favor of ” leaving the clauses as it stands. Let every State import what it pleases.”
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. Sherman : “it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non.” Baldwin assured his colleagues that if Georgia were left to herself, “she may probably put an end to the evil.” King thought the whole subject “should be considered in a political light only.”
Voted (7 – 3 – 1) to commit Article VII, Sections 4 and 5 to an 11-member committee chaired by Livingston. The members of the committee: Langdon, King, Johnson, Livingston, Clymer, Dickinson, L. Martin, Madison , Williamson, C.C. Pinckney, and Baldwin. North Carolina was divided on submitting to a committee. Connecticut, New Jersey, and Pennsylvania voted not to commit. C. Pinckney and Rutledge were not selected. Dickinson, L. Martin, and Madison have each expressed their strong opposition to the slave trade. It is important to note that the delegates were determined to revisit the slavery provisions of the Committee of Detail Report and seek an alternative position.
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). North Carolina divided.
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.”
Took up Article VII, Section I (powers of Congress). After considerable discussion and minor alterations agreed to Section 1. The Necessary and Proper Clause generated little debate.
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. Wilson thought, “this is a key-stone wanted to complete the wide arch of Government we are raising.” Sherman and Williamson “thought it unnecessary.” The motion was 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 lay 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.
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 Congressional interference with slave trade until 1800, keeping Section 5, striking section 6 and permitting a tax to be imposed on migration and importation.
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 direct election by 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.
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). C.C. Pinckney,[/tah-onclick] who was a member of the Livingston Committee, “moved to strike out the words ‘the year eighteen hundred’ and insert 1808 instead.” Agreed (7 – 4) to change from 1800 recommendation of the Livingston Committee to 1808 concerning the prohibition on Congress with respect to the international slave trade. (New Jersey, Pennsylvania, Delaware, and Virginia voting against. They wanted 1800.) 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.” G. Morris wanted the clause to say this was a compliance with “North Carolina, South Carolina, and Georgia.” Dickinson urged that the clause be confined to those states “now existing.” Agreed nem. con. Also approved a slave trade import tax not to exceed $10.00 per person.
Approved, nem. con., Article VII, Section 5 as reported.
Postponed Article VII, Section 6.
Article X, Section 2. Defeated (6 – 3 – 1) motion allowing appointment to Federal offices by State Executives.
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. Delaware and South Carolina “no.”
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.” Approved Section 1 (6 – 2)
Took up Article XI, Section 2. Defeated (7 – 1) removal of justices by Executive on request of Legislature. Connecticut disagreed.
Began discussion of Article XI (judicial powers).
Took up Section 1: “The Judicial Power of the United States…” Agreed (6-2) to Johnson’s motion to add “both in law and equity” after the words “United States.” Three states absent. Approved Section 1 (6-2).
Took up 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.
Johnson of Connecticut moved that the power of the Judiciary shall extend to all cases “both in law and equity” arising under “this Constitution.” Madison was concerned: did this give the Judiciary an unrestrained reach into all cases involving law and equity. Johnson assured the delegates that he meant, “that the jurisdiction given was constructively limited to cases of a Judiciary nature.” Johnson did not intend his motion to be an invitation to the Judiciary to open up the Constitution and make decisions of a political nature. With this assurance, the motion was agreed to nem. con.
Approved Article XI, Section 2 (6-2). Delaware and Maryland “no.”
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.
Massachusetts, New Jersey, and North Carolina experienced difficulties meeting quorum requirements.
Continued discussion of Article XI.
Took up Section 3 (appellate jurisdiction). Approved Section 3 (9 – 1).
Took up 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 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): “Any 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.” Agreed to Article XV, nem con.
There were 12 recorded votes on this day. Madison noted that New Jersey was absent for the first three votes, but present and voting later. Someone was temporarily absent. Madison recorded Massachusetts absent for the seventh vote. This also must have been a temporary absence. Maryland was evenly divided on the third vote. Georgia was divided on the final vote of the day.
Butler and Pinckney from South Carolina wanted the provision concerning the flight from justice in one state to be extended to slaves who fled for freedom. They moved “to require fugitive slaves and servants to be delivered up like criminals.” Wilson objected as a matter of principle. Sherman did not want to deal with the issue of fugitive slaves as extradited criminals. According to Madison: “Mr. Butler withdrew his proposition in order that some particular provision might be made apart from this article.”
Where did Butler’s idea come from? The answer is the Confederation Congress meeting in New York on July 14, 1787. The Congress agreed to prohibit slavery in the Northwest Territories at once — 1787 — rather than 1800 in exchange for a Fugitive Slave Clause. And thus the Northwest Ordinance was passed.
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).
There were five recorded votes on this day. Eleven states voted.
Madison wrote a footnote on General Pinckney‘s remark about “the liberal conduct” of the “Eastern States towards the view of South Carolina.” Pinckney “meant the permission to import slaves. An understanding on the two subjects of navigation and slavery, had taken place between those two parts of the Union.”
Butler introduced a revised version of the Fugitive Slave Clause separate from the extradition clause, and the world “criminal” was dropped. This passed 11-0.
If the Congressional veto over state legislation has been defeated and replaced by the supremacy clause, who enforces it? The answer is the federal judiciary.
Why did the slavery clauses of the Committee of Detail Report generate the most opposition of any clauses in the August 6 draft of the Constitution? How come the South Carolina delegates, and following their lead, the delegates from North Carolina and Georgia, manage to leverage their minority numerical position to extract concessions from the majority of the delegates and the majority of the states in attendance?
Madison’s argument on June 6 is that they needed to create a Constitution that will control the tyrannical conduct of the majority including, but not limited to, the tyrannical conduct of a majority. “In the most enlightened period” of all time, we see the rule of the majority over a minority based on “the mere distinction of color.”
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.”
“The Leftovers Committee,” or Brearly Committee of “Postponed Parts,” was selected, one delegate from each of the 11 states. The composition of this committee, and the desire to come to a workable compromise, once again depicts the shifting disposition of the delegates to the Convention over the long haul of the deliberations.
The presence of Sherman, Brearly, Dickinson, Carroll, and Baldwin meant that the State Legislatures would be centrally involved in the election of the President. They were important delegates in the creation and passage of the partly national, partly federal Connecticut Compromise that settled the controversy over popular representation and the equal representation of state. Even with the absence of New York, the old New Jersey Coalition of June was still alive and well and could point to the precedent of the Connecticut Compromise — even though the internal composition of the Coalition had changed.
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 the 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.
The End is in Sight
Heard initial report from Brearly Committee.
Discussed alteration in Article VI , Section 9 (Ineligibility of Federal Legislators to other Federal offices).
Also, 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.”
Took up Article XVI (Full Faith and Credit clause). Agreed to the clause (6 – 3). Uniform bankruptcy laws agreed to (9-1). Connecticut “no.”
Took up Article VI, Section 9 (ineligibility of Federal Legislators to other Federal offices). Agreed (5 – 3 – 1) to Article VI, Section 9. New Jersey not voting, Georgia divided.
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, nem. con., 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.) The Executive and the Vice President, “shall hold …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.”
Sherman argued that the point to this clause was “to render the Executive independent of the legislature.” Randolph and Pinckney wanted an “explanation and discussion of the reasons for changing the mode of electing the Executive.” G. Morris gave six reasons and emphasized that the “principal advantage aimed at was that of taking anway the opportunity for cabal.”According to Wilson: “the subject has greatly divided the House, and will also divide people out of doors. It is in truth, the most difficult of all on which we have had to decide.””
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) a motion to postpone consideration of Proposals #4-9. Connecticut, New Jersey, and Pennsylvania “no.” North Carolina temporarily absent.
#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: yet another reconsideration of the money bills “glue”of the Connecticut Compromise.
Gerry gave notice that he wanted to reconsider Articles XIX (amending), XX (oath), XXI (ratification), and XXII (blessing of Confederation Congress) of the Committee of Detail Report.
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). Madison “considered it as a primary object to render an eventual resort to any part of the Legislature improbable. Randolph: “We have in some revolutions of this plan made a bold stroke for monarchy. We are now doing the same for an aristocracy.” 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.
Agreed to request Congress to pay Convention expenses
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.
Debates in the Federal Convention of 1787
Continued discussion of Brearly Proposal #4 to amend Article X, Section 1 (election of Executive). G. Morris: “the Vice President then will be the first heir apparent that ever loved his father.” Mason preferred a Privy Council to having a Vice President. Agreed (8-3) on Electoral College with majority of electoral votes needed for the election of the Executive. Maryland, South Carolina, and Georgia “no.” Decided (10-1) that the House, rather than the Senate, shall decide in the event that the “Electoral College” breaks down, but each state shall have one vote. Pennsylvania disagreed. Approved (6 – 4 – 1) motion to let Legislature determine who shall act in cases of disability of President and Vice President. New Hampshire divided.
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. New Jersey and Maryland “no.”
Took up proposal #7: powers of the Executive. Defeated (10 – 1) motion to include House in treaty making. Pennsylvania disagreed. 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 said that in rejecting a Council to the President we were about to try an experiment on which the most despotic governments had never ventured.”
Resumed discussion on Brearly 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 supported by Gerry wanted to add “maladministration” to “treason and bribery.” Madison responded: “So vague a term will be equivalent to tenure during pleasure of the Senate.”Agreed (8 – 3) to replace “maladministration” with “other high crimes and misdemeanors against the State” and then “United States.” New Jersey, Pennsylvania, and Delaware “no.” 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.” Note, as in the case of the membership on the Committee of Detail a delegate from Connecticut, Pennsylvania, Virginia, and Massachusetts were chosen. Who would be the extra this time? Hamilton could not vote on the floor of the House because New York was not “officially” present. Yet, he was elected by the Convention delegates to the Committee of Style!
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). New Jersey “no;” New Hampshire divided. 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 “never could agree to give a power by which the articles relating to the slaves might be altered by the States not interested in that property and prejudiced against it.” He 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. Pennsylvania “no.”
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.”
Randolph took this opportunity to state 12 “objections to the system.” Randolph and Gerry explain their reservations about signing the Constitution “if approbation by Congress” isn’t required. Delegates 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.
The five people elected to the Committee of Style showed yet another swing in the deliberate sense of the Convention. The delegates, in the last stages of the Convention, were willing to give a privileged position in providing the “final touches” of the Constitution to such consistently “high-toned” delegates as King, Hamilton, G. Morris, and Madison. I find this remarkable. The fifth delegate chosen, and also the chair of the Committee of Style, was Johnson of Connecticut. The “high toners” today have been given, by the entire Convention, the opportunity to put an original Virginia Plan stamp back on the final product. Interestingly, there was one delegate from Massachusetts, Pennsylvania, Virginia, Connecticut, and one lelft over. In July, it was Rutlege from South Carolina. Today, it was Hamilton from New York.
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. Mason wished the plan “had been prefaced with a Bill of Rights… It would give quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours … The Laws of the US are to be paramount to State Bills of Rights.” Motion is defeated (10 – 0). Massachusetts temporarily absent.
In early September, as we have seen, the Virginia delegates divided over ratification procedures more than did the Convention as a whole. Should ratification be by state legislatures or state conventions elected by the people, and then how many should say “yes” for ratification? What is to be the role of these conventions? Can they propose amendments or must they just vote “up or down?” What about the role of the existing Congress? Must they approve the proposals and can they make alterations? Should there be a Second Grand Convention where all these things are pulled together?
On September 12, the Virginia delegation disagreed on whether to substitute a 2/3 Congressional override of a Presidential veto for the proposed 3/4 override requirement in Article I , Section 7 of the Committee of Style Report. Madison provides detail. “On the question to insert 2/3 in place of 3/4,” writes Madison, the measure passed 7-3-1. “New Hampshire divided. Virginia no … General Washington, Mr. Blair, Mr. Madison no. Col. Mason, Mr. Randolph ay.” Again, Washington wasn’t reluctant to participate, and, it should be noted, even in such a delicate matter as the independence, and centrality, of the Presidency. The 3/4 override was changed in the last days of the Convention to 2/3, but this does not alter the fact that Washington could be active AND he could be defeated.
This second vote concerned the call for the adoption of a bill of rights by Gerry and Mason. The latter “wished the plan had been prefaced with a Bill of Rights, and would second a motion if made for that purpose — it would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.” And a federal bill of rights was necessary, he added, because “the laws of the U.S. are to be paramount to State Bills of Rights.” The motion was defeated (0-10-1). Massachusetts absent. Gorham spoke just before the motion and Gerry supported the motion. King did not speak today. So King is probably the absent one from Massachusetts thus making Massachusetts absent.
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.” The delegates agreed with Randolph, that “servitude” expressed “the condition of slaves.” 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.” Mason, Franklin, Dickinson, Johnson, and Livingston selected 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.
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 by Madison and Pinckney to give Congress power to establish a university “in which no preferences or distinctions should be allowed on account of religion.” G. Morris argued, that “it is not necessary. The exclusive power of the Seat of Government, will reach the object.” Connecticut divided. Pennsylvania, Virginia, South Carolina, and Georgia voted that it was necessary.
Pinckney, Gerry, and Sherman debate whether Congress has the power to interfere with freedom of the press. According to Sherman: “it is unnecessary. The power of Congress does not extand to 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.
The delegates discussed the Interstate Commerce Clause in Article I, Section 8, the restraints on the states in Article I, Section 10, and turned their attention to the Presidency in Article II, and the amendment process in Article V. 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: “he never could sign the Constitution” if this were 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). Madison argued that this depends on the extent of the Interstate Commmerce Clause. McHenry, Carroll, Langdon, Mason, G. Morris, Madison and Sherman debate the meaning of the interstate commerce clause. 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.” Connecticut divided.
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.” Connecticut divided.
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. Sherman “thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.”Agreed (8 – 3) to the motion of G. Morris that a state cannot be deprived of its equal suffrage in the Senate without its own consent.
Gerry listed seven objections to the Constitution and offered three possible changes. The delegates 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.”
On September 15, Mason listed 16 objections. Mason wrote to Washington giving the General a copy of his objections to the Constitution. “Dear General,” began Mason, “you know how much I love you and how we worked together, but my conscience demands that I state my objections, and here they are. No bill of rights, the President may pardon all kinds of people …” Washington then wrote to Madison and said, “You know, I made sure that his letter made it to all the newspapers across the country as a way of demonstrating what an unreliable man George Mason is.”
Franklin opened the day with a speech that was used by the pro-constitutionalists in the ratification debate. “I agree to this Constitution with all its faults … I doubt too whether any other Convention we can obtain may be able to make a better Constitution … Sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his infallibility — and to make manifest our unanimity, put his name to the instrument.”
Gorham, supported by King and Carroll, hoped “it was not too late” as a way “of lessening objections to the Constitution to substitute 1:30,000 for 1:40,000” by giving Congress “a greater latitude” in securing a reasonable scheme of proportional representation. Washington spoke for the first time at the Convention: “It was much to be desired that the objections to the plan recommended might be as few as possible … Late as the present moment was for admitting amendments, he thought this of so much consequence that it would give satisfaction to see it adopted.”
Franklin raised the following practical questions: 1) Isn’t “a more perfect union,” better than “a less perfect union?” 2) Isn’t “a perfect union,” achievable only in speech? Randolph issued the following grim warning as an explanation for his decision: “Nine States will fail to ratify the plan and confusion must ensue.” Gerry feared an impending civil war and considered Franklin’s remarks to be personally motivated.
Franklin also had the last word at the Convention with his “Rising Sun” speech.
Franklin’s optimistic appeal to the improvement of the American condition and Randolph’s pessimistic appeal to the realism of “political arithmetic” marks the end of the Four-Act-Drama of the Convention.
Washington noted in his diary, that “the members adjourned to the City Tavern, dined together and took a cordial leave of each other.”