Act IV: The End is in Sight

Part Four of a Constitutional Convention role-playing scheme for educators and secondary classrooms.

Scene 1: The Brearly Committee Report

September 1, 1787 | 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 for the day.

September 3, 1787 | 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 for the day.

September 4, 1787 | 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 for the day.

September 5, 1787 | Brearly Committee reports 5 more propositions

Considered Proposals #10, 11, 13, and 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 and 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 for the day.

September 6, 1787 | 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 for the day.

September 7, 1787 | 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 for the day.

September 8, 1787 | 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, choosing 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 for the day.

September 10, 1787 | 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 for the day.

Scene 2: The Committee of Style Report – A Preamble and 7 Articles

September 11, 1787 | 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 for the day.

September 12, 1787 | 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 for the day.

Scene 3: The Discussion of the Committee of Style Report

September 13, 1787 | 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 for the day.

September 14, 1787 | 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 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 for the day.

September 15, 1787 | 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 without 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 bypass 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 for the day.

September 17, 1787 | 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 for the day.

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