The Impact of Individual Delegate Attendance

Introduction

One could well argue that every day was crucial in the life of the Convention. And one could also argue that the daily attendance, or non-attendance of individual delegates, is also crucial. These two arguments gain credibility the more time and attention one pays to the appearance and alteration of resolutions and the comings and goings of the delegates.

The purpose here, however, is to introduce the current generation of teachers, students, and citizens, to “turning points” in the work of the Convention and to link these “crossroad” days to the part that certain individual delegates, and delegations, played in moving the Convention to the next stage of its task. The aim is to give a feel for, and an appreciation of, the dynamics of the deliberative process, sometimes “cool and deliberate” and other times hot and intemperate, and how statesmanship is closely related to thinking on one’s feet.

The Constitutional Convention as a Four Act Drama

We can divide the Constitutional Convention into a Four Act Drama that takes place over 88 days. Act I covers 21 days and captures the conversation over the alternative plans. I have highlighted the exchanges which took place on May 29 and 30 as well as June 6 and June 11. Act II covers 30 days and shows how the mood of the Convention changed toward the end of June. I have chosen to examine June 29, July 2, and 16. Following the Intermission, the curtain rises for Act III; a 23-day discussion takes place over the Committee of Detail Report. We look at August 13, 21, and 22. Act IV, where the end is in sight, covers 14 days. We consider September 10, the day Edmund Randolph states his reasons for not signing the Constitution, and September 17, the last day of the Convention.

There are two quorum requirements that should be kept in mind.

• The first is the Constitutional Convention quorum requirement that 7/13 state delegations must be present for the Convention to conduct its business. Since Rhode Island never sent delegates, New Hampshire did not arrive until near the end of Act II, and New York was absent after July 10, the operational Convention quorum was actually 7/11.
• Meeting 7/11, is dependent on the second requirement that each state delegation meets its own minimum internal quorum requirement of individual delegate attendance. This was determined by each one of the state legislatures. Thus New Hampshire’s minimum internal quorum requirement was 2/2 individual delegates. Massachusetts was 3/4, Connecticut 1/3, New York 2/3, New Jersey 3/5, Pennsylvania 4/8, Delaware 3/5, Maryland 1/5, Virginia 3/7, North Carolina 3/5, South Carolina 2/4, and Georgia 2/4.

Act I: The Alternative Plans

May 29: Virginia Plan introduced and defended by Randolph

James Madison notes the arrival of Elbridge Gerry from Massachusetts, thus allowing Massachusetts to meet their internal quorum requirement. He also notes the arrival of John Dickinson from Delaware.

Randolph presents and defends the Virginia Plan.

He reminded the delegates that they were gathered to prevent “the fulfillment of the predictions of prophesies of the American downfall.” And Washington, writing that day to Jefferson reasserted his premise that the Articles of Confederation “is shaken to the foundation, and liable to be overturned by every blast. In a word, it is at an end; and unless a remedy is soon applied, anarchy and confusion will inevitably ensue.” Earlier in the Spring, Washington had written to John Jay that “we have errors to correct.”

George Mason explained in a letter to his son that the atmosphere at the Convention “absorbs, and in a manner that suspends the operations of the human understanding.” He continues his observation of the initial day’s meeting: “The revolt from Great Britain and the formation of our own governments at that time, were nothing compared to the great business now before us.” Four months later, he has a less sanguine view of the work of the Constitutional Convention.

The distinctive feature of the Virginia Plan is the removal of the state legislatures both structurally, and in terms of powers, from any important place in the new continental arrangement. Most importantly, the Plan contains the following eight elements:

1. The National Legislature should consist of two branches.
2. The people of each State should elect the First Branch of the National Legislature. The Second Branch of the National Legislature should be elected by the first.
3. The National Legislature shall have power “to legislate in all cases to which the separate States are incompetent,” and “to negative all laws passed by the States, contravening in the opinion of the National Legislature the articles of Union.”
4. The National Legislature shall elect a National Executive.
5. The Executive and a number of National Judiciary will form the Council of Revision. This Council will review laws passed by the National Legislature and have the power to reject the laws, unless the National Legislature can pass the act again.
6. The National Legislature will create the National Judiciary. The structure will consist of one or more supreme tribunals and inferior tribunals. Judges will be appointed for life, during good behavior.
7. State Legislatures, Executives, and Judiciary are to be bound by oath to support the Articles.
8. The new plan for government should be ratified by the people, through assemblies of representatives chosen by the people.

Echoing parts of Madison’s Vices of April 1787, Randolph itemized five reasons why the Articles of Confederation must be radically altered:

1. “It does not provide against foreign attacks.”
2. “It does not secure Harmony to the States.”
3. “It is incapable of producing certain blessings to the States.”
4. “It cannot defend itself against encroachments.”
5. “It is not superior to State constitutions.”

Madison’s “The Vices of the American System,” lists eleven vices, or errors, including “Encroachments by the states of the Federal Authority,” “Privations of the law of nations of the treaties,” and “Trespass of one state against another.” Like Randolph, Madison claimed that the Articles were defective because of these transgressions, or rather because the Articles provided no means to prevent the vices from taking place.

In other words, Madison and the Virginians were not simply out to reform or alter the power of the Articles, but to abolish the structure of the Articles because that very structure protected the unjust measures of the state legislatures. An appeal to the Annapolis Convention supported this project. And what is also interesting, unlike the reformers, the “structuralists” don’t seem to be particularly motivated by Shays Rebellion or the mandate from Congress to focus on reforming the Articles of Confederation.

(I think it is reasonable to assume that the Confederation Congress would approve a Convention to enhance the powers of Congress, but have greater difficulty endorsing a convention that would replace the very structure of the Articles.)

As early as 1780, Alexander Hamilton had pointed out that “the want of power” in the Articles to accomplish the ends of union was the defect of the Articles. By 1787, however, this was the conservative or reformist position. By 1787, Hamilton had joined Washington and Madison in arguing that there was a “structural defect” in the Articles, and not just a defect of power that needed to be addressed. In 1787, “the want of power” delegates had become the risk averse reformers rather than risk prone Framers.

Madison’s eleventh vice — “Injustice of the States” — dealt with the fact that, structurally, the Articles permitted each state to operate as it pleased. This supreme vice, or error, or defect, argued Madison, violated the principle that all men are created equal. The principles of liberty and justice contained in the Declaration of Independence and the state constitutions — that the purpose of government is to protect the rights of all human beings — was being continually violated, argued Madison, because majorities within each state abused the majoritarian principle and passed laws contrary to the political, religious, and economic rights of others. The vice of the Articles of Confederation was that it contained no mechanism to permit the Union to remedy that vice because the Articles protected the state legislatures in their repeated violations of the three principles of republican liberty.

According to Madison in the Vices, the Articles protected the state legislatures in three erroneous ways: the passage of multiple laws, the passage of mutable laws, and the passage of laws that violated the principles of liberty and justice. Concerning the last vice, Madison listed three areas where the state legislatures placed the revolutionary principles of economic liberty, political liberty, and religious liberty in danger.

In the area of economic liberty, or private property, for example, state legislatures passed a number of laws wiping out the responsibilities of debtors. Populous and merciful as these laws might have been, such laws amounted to extortion and expropriation: a commercial country cannot function unless capitalists and businessmen feel a certain confidence in investing. This “levellist inspired” method anticipated socialist legislation in the nineteenth century regarding redistribution of property. Madison also pointed to the transgressions against political liberty where the majority in state legislatures was inclined to pass ex post facto laws and bills of attainder. Finally, Madison was alarmed by the majority in Virginia using their power to establish religion and to violate the right to conscience.

Thus despite the fact that the revolutionary era supposed that rights are best secured by republican government close to the people, Madison argued that this very proximity in fact makes rights insecure. In the early 1770s, Americans worked to protect themselves and their rights from the “bully,” or the king, but in the following decade, if we follow Madison’s line of reasoning, the unrestrained majorities in the state legislatures, became the problem rather than the solution.

(There is a division of opinion in the scholarly literature concerning the motivation behind the introduction of the Virginia Plan. Some scholars credit Madison for his strategic brilliance in shifting attention away from revising the Articles of Confederation to this new and bold plan. Other interpreters point out that the Plan was introduced by Virginia, the largest state, which would benefit in terms of representation at the expense of the smaller states who received equal representation under the Articles of Confederation. A number of political theorists portray the Virginia Plan as making the novel case for “the large republic” theory over against the traditional “small republic” theory articulated by Roger Sherman on June 6 against Madison’s position.)

What is clear from both Randolph’s arguments and the related plan of May 29th is that the Virginians saw state legislatures, in both large and small states, as dangerous to liberty and justice. What is also clear is that the Virginians saw no principled reason for the equal representation of states qua states under the Articles of Confederation. Perhaps this is one of those situations where justice and self-interest occupy a common rather than a hostile ground. Madison did not frame the Virginia proposals as one revolving exclusively, or even mainly, around the large state/small state dispute. True, Madison’s home state of Virginia was a large state (which means a larger population, which in turn could result in a greater number of votes or representatives), but Madison argued that the real contest was between a system based in equal representation of all the states and the proposed solution of the “enlarged orbit” envisioned by the Vices and proposed in the Virginia Plan. Madison was very much attached to the idea that the principles of the revolution could only be secured by moving to an enlarged orbit and away from a “parochial” orbit.

Virginia had declared independence before the continent officially declared independence from Britain, and had taken the lead at the Annapolis Convention and initiated the calling of the Grand Convention. Perhaps self-interest interest drove the Virginia delegates to introduce the Virginia Plan. But intentionally or not, Madison et al provided a new continental solution to a very difficult problem, namely the mortal disease of majority faction located at the level of the state legislatures. And this project certainly set the tone for the subsequent debates at the Convention.

May 31: Resolutions 2-6 Discussed and 5a Defeated

Madison notes that William Pierce from Georgia arrived. William Few from Georgia was present from the start of the Convention but did not vote because there were an insufficient number of Georgia delegates present to meet the internal quorum requirement. With the arrival of Pierce, Georgia can now vote because they meet their internal quorum requirement of 2/4.

There were four votes taken today and 10 states voting. Connecticut and Delaware were both divided on the first vote of the day. Delaware was divided on the second vote and Connecticut divided on the third vote of the day. This means that two delegates were present from Connecticut and four from Delaware. Dickinson was absent. Maryland not voting because of a question about their quorum requirement.

On the first vote of the day, which was only the fifth vote of the Convention, the state delegations voted 6-2-2 in favor of the first branch of the legislature being elected by the people. According to Madison “MASSTS AY. CONNECT. DIVD. N. YORK AY. N. JERSEY NO. PENA AY. DELAWE DIVD. VA AY. NC. AY. SC. NO, GEORGA AY. [Ayes-6; noes—2; divided—2]”

A vital part of the Virginia Plan was to secure popular representation in both branches of the legislature. The first step in this project was to secure popular representation in the first branch of the legislature or the lower house of Congress.

Interestingly, New York voted “ay” with respect to popular representation in the lower branch. That means that Hamilton and Robert Yates agreed with each other and voted in favor of the motion. So Yates was willing to move away from the Articles of Confederation and its one branch legislature where each state was represented equally. But John Lansing has not yet arrived; Yates and Lansing later become strong allies and left the Convention before the adoption of the Connecticut Compromise where the upper branch guaranteed equal representation of the states. In other words, one of the 6 “ayes” – New York – becomes less strong and a later vote on this motion could easily become 5-3-2. The subsequent attendance of Lansing changed the complexion of the New York delegation.

And why are Connecticut and Delaware divided? William Samuel Johnson of Connecticut had not yet arrived, so the Connecticut delegation was split between Oliver Ellsworth and Roger Sherman. How would the arrival of Johnson change the character of the Connecticut delegation? Delaware was divided because there was a 2-2 split in the delegation. Who was absent? Was Dickinson probably absent?

Maryland did not vote.

Put differently, under different circumstances, the 6-2-2 vote could have been 5-5-1. Not exactly the start that Madison would have wanted to establish the foundation for popular representation.

The third vote of the day and the seventh of the Convention, concerned the Senate or “the second branch.” The Virginia Plan called for “the members of the second branch…… to be elected by those of the first.” Sherman favored, instead, “an election of one member by each of the State Legislatures.” He thus set down the key issue for the next month. The vote was 3-7 in favor of the Virginia Plan. Put differently, the vote was 7-3 against the Virginia Plan.

Only Massachusetts, Virginia, and South Carolina — led by Charles Pinckney — voted in favor of the second branch provision in the Virginia Plan. So Madison, in effect, lost to Sherman on the mode of election for the Senate although no substitute resolution was proposed on this day. Madison’s reaction is telling: “a chasm [was] left in this part of the plan.”

Interestingly, again, New York voted “no.” So that means that Yates and Hamilton actually agreed and voted against the Virginia Plan concerning the mode of election for the Senate! [Lansing had not yet arrived.] That consensus vote is surprising given Hamilton’s negative inclinations toward the state legislatures.

June 6: Are people “more happy in small than large States?”  Should Resolution 4a be adopted?

There are two recorded votes today. Eleven states are voting.

Theoretically speaking, this is one of the most important days in the life of the Convention. This is where a straightforward proposition concerning popular representation in the House turns into a debate between Madison and Sherman over the virtues and vices of a large and a small republic.

We know that Madison was present every day, so it is difficult to make the argument that his presence on this day was vital. What is important to point out is that Roger Sherman’s arrival on May 30 changed the tone of the Convention.

But what Madison articulated today concerning the dangers of majority faction, especially concerning the property question, and the solution residing in the control of the effects of faction rather than in the elimination of the causes of faction, points us back to his “Vices”, written in Spring 1787, and forward to Federalist 10, written in Fall 1787. And we are prompted by Madison’s theoretical argument concerning the dangers of majority faction to ask the question, why here at this point in the Convention? The answer is that the extended commercial republic solution and the provisions of the Virginia Plan are intertwined. And the link is that what is to be done about controlling the effects, rather than eliminating the cause, majority faction.

And Sherman’s arguments, although less theoretically articulated, anticipate 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. That is what the “oracle” Montesquieu argued and what the tradition of republican liberty has demonstrated. Besides, it is not the factious nature of the people that must be guarded against; rather it is the corruption of the politicians as a result of the temptation of power.

We are pushed to ask, what has this argument about the happiness of the people got to do with the specific issue of representation under discussion? The answer is that any modification in the Articles of Confederation entails a modification in how to preserve republican liberty. Madison wanted a modification in the structure of the Articles because the very structure preserved the privileged position of the state legislatures and, as far as Madison was concerned, the state legislatures were guilty of putting the revolutionary principles of economic liberty, political liberty, and religious liberty in danger. Sherman considered the central issue of the Convention to be the bestowing of two additional powers on Congress — the power to tax and the power to regulate interstate commerce — rather than abolishing the structure of the Articles.

The question will become: How far are Sherman and others willing to modify their position and how far is Madison willing to accept a “middle ground?”

Why New York did not vote “no” and thus make the vote 7-4? Was Lansing absent? Was Hamilton persuasive? Why did Maryland vote in favor of popular representation? Was Luther Martin just outvoted? And what is going on in South Carolina where Pinckney has been a warm supporter of popular representation? Although Madison is being opposed with respect to popular representation in the Senate, he is still holding his own in securing popular representation and election in the House.

The Virginia Plan called for Council of Revision, which entailed “adding 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. Virginia is understandable, but why Connecticut and New York? Anyway, the point here is another example of Madison “losing.”

(This is clearly a political theorist’s day at the Convention with the dispute between Madison and Sherman over republican liberty taking center stage.)

June 11: Popular representation in both branches?

Madison notes that Abraham Baldwin from Georgia arrived. There are nine recorded votes and eleven states voting. Maryland is divided on the first vote. Thus both Martin and Daniel of St. Thomas Jenifer are present. There are no other divided votes today.

The first vote revisits the earlier agreement of May 31 that representation in the House should be based on population. The vote today was 7-3-1 in favor. (New York, New Jersey, and Delaware voted no.]

According to Madison on May 31, “MASSTS AY. CONNECT. DIVD. N. YORK AY. N. JERSEY NO. PENA AY. DELAWE DIVD. VA AY. NC. AY. SC. NO. GEORGA AY. [Ayes-6; noes—2; divided—2]

What did attendance or non-attendance have to do with changing the vote from 6-2-2 on May 31 to 7-3-1 on June 11?

Connecticut today voted “yes” rather than being divided. That is probably due to the arrival of Johnson and Connecticut offering support to the Connecticut delegation’s effort on behalf of popular representation in the lower branch in exchange for equal representation of the states in the upper branch. Delaware shifted from being divided earlier; this time Delaware voted “no.” Why did this shift take place? And in a way that is just the opposite of Connecticut’s attempt to compromise?

Maryland, on the other hand, was now divided. On May 31, Maryland did not vote because it did not meet its internal quorum requirement. Today, it met the quorum requirement, but the two delegates were divided! And New York changed from being in favor on May 31 to being opposed on June 11. Again, Lansing’s recent arrival altered the chemistry of the New York delegation. Hamilton was there and, thus, outvoted. Earlier, Hamilton and Yates were in agreement.

June 11 is also the day that the “infamous” 3/5 clause is introduced. It was inspired by Sherman’s introduction at the start of the day of the essence of the Connecticut Compromise, namely, popular representation in the House and equal representation of the states in the Senate.

The 3/5 clause is introduced by Wilson and seconded by Pinckney as an inducement to stick with the agreement on popular representation in the first branch in the face of the Compromise floated at the start of the day by Connecticut. The Wilson-Pinckney motion passed 9-2 with only New Jersey and Delaware voting “no.” Sherman et al did not oppose this effort to secure popular representation in the House.

Right after the vote, Sherman introduces a motion — seconded by Ellsworth of Connecticut — that each state shall have one vote in the second branch. This failed to pass on a 5-6 vote. The three states from the deep South joined Virginia, Pennsylvania, and Massachusetts and voted “no.”

James Wilson and Hamilton, who had been outvoted in New York by Lansing and Yates on this 5-6 vote, now moved that representation in the second branch be the same as the first branch. This passed 6-5.

The effort of the Connecticut delegation to take the lead in proposing a compromise over popular representation and state representation resulted in Wilson introducing the so-called 3/5 compromise on representing slaves in both the lower branch and the upper branch. Once again, and not for the last time, North Carolina, South Carolina, and Georgia managed to leverage their numerical minority status when the issue of slavery emerged. And Wilson, Hamilton, and Madison — three delegates who were not sympathetic to the perpetuation of slavery — were willing to “deal” with North Carolina, South Carolina, and Georgia in order to secure the principle of popular representation!

The failure of Sherman et al to secure equal representation in the upper branch by one vote led delegates from five states to create the alternative New Jersey Plan.

Over the first couple of weeks, Gouverneur Morris was able to bolster the nationalist forces, not only with his surging rhetoric, but also his persuasive arguments. He was the one who drew the clear distinction between a wholly national and a wholly federal government.

And the Morris position remained the conceptual framework for the delegates until today when Sherman introduced a compromise on the representation issue without, however, introducing a new conceptual justification for the compromise. He based it on what we might call pragmatic realism: “You folks in Virginia want popular representation and we in Connecticut want state representation. Why not just have both and be done with it?” The conceptual breakthrough, as distinct from a “mere compromise” occurred, as we shall see, on June 29 and June 30 with the floating of the concept that we are partly national and partly federal.

Gouverneur Morris was absent from June 11, when Sherman floated his pragmatic compromise, until June 30 by which time Ellsworth had introduced a principled compromise. So the delegate who was partly responsible for setting the high tone at the start of the Convention, and largely responsible for restoring that high tone in the last two weeks of the Convention, made no formal contribution to the vital conversation over nationalism and federalism during the critical three weeks in June. There is a sense of disappointment that the delegate who is recorded as speaking the most at the Convention is not recorded as saying anything during the critical conversation in June.

And it also means that Morris, a warm opponent of slavery, was absent when Wilson and Hamilton introduced the 3/5 Compromise.

Act II: The Connecticut Compromise

June 29: Ellsworth: “we are partly national; partly federal”

Three recorded votes today. Eleven states voting.

Today marks the last day of Hamilton’s presence at the Convention until perhaps mid-August or even early September. One can only speculate at why Hamilton decided to depart today. My hunch is that he found the “partly national; partly federal” compromise proposal to be totally unacceptable. Such a compromise joined together the structural components of the Virginia Plan and the New Jersey Plan instead of moving us toward a rejection of both as Hamilton had proposed on June 18. He has simply had enough.

This day also sees the restoration of the New Jersey coalition to an active disposition.

On votes 1 and 2, Maryland was divided, Jenifer and Martin both present. And Connecticut, New York, New Jersey, and Delaware vote together in yet another effort to resist proportional representation in both branches.

Connecticut, once again, proposed a compromise on proportional representation in the House and equal state representation in the Senate. This time, Ellsworth proposed the compromise on representation in terms of a newly articulated principle: “we were partly national; partly federal.”

On June 11, Sherman proposed such a compromise on representation but did not advance it as a principled argument other than the fall-back position of June 6 that people are happier in small republics than they are in large republics. On June 11, Sherman seemed to be initiating what came to be known later as political realism: Why don’t we cut a deal and go home? To Sherman’s credit he thought through the issue over the next two weeks.

To Madison’s credit, he insisted all through June that there was a principle of justice at stake in the argument for proportional representation. And he repeated that argument today in face of Ellsworth’s newly discovered principled defense of a partly national and partly federal Constitution. And in so doing, Madison provides us with the first draft of Federalist 51 and shows how that famous essay is a mixture of principle and prudence.

Madison’s point is that equality of representation of the states in the second branch would build into the system the ability of a majority of states to defeat “the interests and wishes of the majority” of the people. Thus such a proposal is unprincipled. He then turns from abstract principle to prudent realism. “He admitted that every peculiar interest… ought to be secured as far as possible. Wherever there is danger of attack,” says Madison, anticipating the link in Federalist 51 between deliberative politics and the war metaphor of attack and defense, “there ought to be given a constitutional power of defense.” And, this time anticipating both Federalist10 and Federalist 51, he focuses what is likely to cause factious divisions within America.

Here is the punch line. The “great division” in America, said Madison, is NOT “between the large and small States; it lay between the Northern and Southern” over “their having or not having slaves.” Accordingly, IF, and I think it is a big IF for Madison, we are interested in the balance of interests doctrine, we should be talking about balancing North and South in the Senate rather than large and small states in the Senate.

It is unclear how far Madison was prepared to go with this suggestion to use the second branch to deal with slavery in the states rather than the size of the states, but the delegates were not interested. They had discovered the partly national, partly federal principle.

(According to Forrest McDonald in E Pluribus Unum, “Madison’s view, which is implicit in his journal, almost daily until July 16, is also the conventional historical view.” McDonald describes that view as a division of six large states lined up against five small states. But, continues McDonald, this depiction of a large state-small state division at the Convention is wrong. If anything, the division was more the “weak or strife torn states against strong or prosperous states.” Here on June 29, Madison actually depicts the great division at the Convention not in terms of large state-small state, but in terms of the division between northern states and southern states.)

July 2: Creation of the Gerry Committee

There are three recorded votes today and eleven states voting.

Vote 1 concerns whether or not to support Ellsworth’s motion to have each state represented equally in the Senate. The vote, according to Madison, was: “MASS. NO. CONN. AY. NY. AY. NJ. AY. PA. NO. DEL. AY. MD AY. (MR JENIFER BEING NOT PRESENT MR MARTIN ALONE VOTED.) VA NO. NC. NO. SC. NO. GEO. DIVIDED. MR HOUSTOUN NO. MR BALDWIN. AY.” The first vote was, therefore, 5-5-1.

For Massachusetts to vote “no” meant that as late as July 2, Gerry and/or Strong are apparently still in support of popular representation in both branches of the federal government. They change their mind over the next couple of weeks. Accordingly, on July 16, Massachusetts was divided on accepting the Connecticut Compromise: Gerry and Strong voted in favor while Rufus King and Nathaniel Gorham voted against the Compromise.

Jenifer’s temporary absence from the floor of the Convention meant that Maryland voted “yes” rather than being possibly “divided.” But this division will also change as the Maryland delegation, including Jenifer, supports the Connecticut Compromise on July 16.

North Carolina also voted “no.” This too will change over the next two weeks. Apparently Davie was outvoted. And the key to the change is that Hugh Williamson shifted to vote with William Davie.

New York voted “yes.” This means that Yates and Lansing voted in favor of the equal representation of the states in the upper branch. This sets up an intriguing question: Why do they both walk out of the Convention roughly one week later when they are in fact getting their way?

Today must have been quite dramatic as the vote was tied 5-5 on Ellsworth’s proposition with the Georgia delegation the last state to vote. As we have seen, the Georgia delegation very rarely split the vote. But today, two delegates were in New York at the Confederation Congress and Houston and Baldwin did indeed split their vote. This split brought the Convention to a full stop.

(Forrest McDonald explains the split in the Georgia vote this way: “Abraham Baldwin, born in Connecticut, regressed to his youth and started sitting with and voting the same as the Connecticut delegates.” And seeing Jenifer being absent at the start of the deliberations today, Ellsworth seized the moment.)

The fact that this is Gouverneur Morris’s first day back after an eighteen-day absence, and the first day of Hamilton’s extended absence, were overshadowed by the adoption of the partly federal, partly national approach.

(I find it somewhat staggering that Morris and Hamilton were only together at the Convention a maximum of 23 of 88 days.)

To repeat: It was time to compromise and move forward or admit deadlock and go home. The delegates over the last three days had discovered that there was in fact a principle on which a compromise could occur: we are partly national and partly federal. From June 11 on, the Connecticut delegation seemed to be offering a mere compromise, or a way out of the delicate situation between being either wholly national or wholly federal. At the end of June, the delegates were invited to support the new principle of partly federal and partly national.

Vote 3 was to approve the selection of one delegate from each state to come up with the details of a partly national, partly federal compromise. The vote was 10-1. Only Pennsylvania voted “no.” Madison couldn’t carry Virginia.

The Convention elected one member from each state and, interestingly, very few if any “wholly national” Madison-oriented delegates were elected to the eleven-member committee. The mood of the Convention had shifted.

Gerry is chosen from Massachusetts over King and Gorham. And it turns out, he then influenced Strong. He is also elected as the chair of the committee. Ellsworth, Yates, William Paterson, and Gunning Bedford were supporters of the federal principle of equal state representation in at least the second branch throughout June. These members were elected to the committee. Martin was chosen over Jenifer to represent Maryland, and Baldwin was chosen over William Houston for Georgia. Davie, who had hardly said anything until he “discovered” the principle of partly national and partly federal, was chosen to represent North Carolina and Franklin was chosen over Gouverneur Morris and Wilson to represent Pennsylvania. John Rutledge was probably more inclined than either of the Pinckneys toward equal representation of the states. He was elected from South Carolina. And Mason was also probably more inclined toward the same disposition than Madison or Blair or Randolph at this stage of the conversation. Mason became an important figure in the work of the Gerry Committee and he convinced Randolph to “buy into” the concept of mixed representation.

July 16: Connecticut Compromise accepted (5-4-1)

There were four votes recorded today. Ten states were voting.

Vote 1 is an up and down vote on the three part Connecticut Compromise package covering proportional representation and money bills in the first branch and equal representation of the states in the second branch.

MAS.DIVIDED. MR. GERRY, MR. STRONG, AY. MR. KING MR GHORUM NO. CONT. AY. NJ. AY. PENA NO. DEL. AY. MD. AY. VA. NO. NC. NO. MR. SPAIGHT NO. SC. NO. GEO. NO. [AYES 5, NOES 4, DIVIDED 1.]

Madison lists names again. I suggest he is disappointed with the division of the Massachusetts delegation. All four delegates were strong initial supporters of the Virginia Plan. I suggest he is also disappointed with the North Carolina delegation that, with the exception of Spaight, drifted away from the nationalizing project.

And what would New York have done? They probably would have made it 6-4-1 in favor of the Connecticut Compromise. Their absence, once again, makes the vote look closer than it is and raises the question of why New York left the Convention when it was accomplishing a considerable amount of what it defended. According to Randolph, “New York if present would probably be on the same side” as those who voted in favor of equal representation of the states in the second branch. Randolph, by the next day, had reconciled himself to the Compromise.

Virginia voted no on the Connecticut Compromise on July 16. Madison does not tell us the breakdown of the vote, but here is a suggestion. Randolph was upset and voted “no.” An alliance with Madison, Blair, and McClurg would have easily carried the “no” vote. Mason, as a member of the Gerry Committee, probably voted yes. So, Washington did not have to be consulted nor reveal his sentiments at this stage of the conversation. With the imminent departure of McClurg, the Virginia delegation in August, however, was down to four members plus Washington. And Randolph and Mason were on one side with Madison and Blair on the other side.

(According to Forrest McDonald, there was a deeper deal going on behind the surface deal, or the three part articulated deal of the Connecticut Compromise. The deeper deal was one forged by Sherman and Rutledge: the Senate would control land disputes in exchange for no Congressional control over the slave trade. McDonald says this deal was hatched over dinner between the two delegates on June 30. Apparently, Williamson of North Carolina appeared unannounced at the dinner and the deal was sealed. “Thus when the vote on equal representation in the Senate was taken on July 16, eight men knew the outcome in advance: the four delegates from South Carolina, the three from Connecticut, and Williamson from North Carolina.” On July 23, the Confederation Congress sold land to the Ohio Company that, continues McDonald, was dominated by the folks from Connecticut. And on August 24, in the final act of what seems to be a multi-layered and exhausting story of espionage, Rutledge of South Carolina moved, and Johnson of Connecticut seconded, to shift land disputes to the Supreme Court!)

Students of the American Founding are usually introduced to their first and last coverage of the partly national-partly federal nature of the Constitution in their reading of Federalist 39. And it is not completely clear where Madison stands on the five tests of federalism and nationalism to which he subjects the Constitution. He concludes that the Constitution is neither wholly national nor wholly federal but a mixture of both. Is he sincere, is he cynical, is he supportive, is he deceptive?

(Martin Diamond, in effect, points out that Madison the magician is at work and, if you aren’t careful, you will confuse the rabbit for the handkerchief and wonder how the body politic got sawed in half. Gary Wills, also commenting in the late twentieth century and basically agreeing with Diamond, calls Madison’s coverage of the national-federal arrangement in Federalist 39, “sweet talk.” Like Diamond, he sees Madison engaging in a deliberate design to placate the electorate into believing the Constitution is more federal and less national than meets the eye. And then there is John Calhoun who, fifty years after the publication of The Federalist accuses Madison of “loose talk.” According to Calhoun, Madison knows full well that the Constitution is wholly federal according to the vital parts of his own five tests, but Madison can’t quite shed his nationalist inclinations and thus let’s his disappointment enter the coverage.)

I think these doubts about Madison’s coverage in Federalist 39, can be resolved for our purposes by asking the following question: who at the Constitutional Convention understood the Connecticut Compromise to rise to the level of principle, albeit a newly discovered principle? No for Madison, yes for Davie and Gerry and Franklin, but how about those grand compromisers Sherman, Ellsworth, and Dickinson?

Sherman, Ellsworth, and Dickinson understood “the accommodation” concerning the national-federal nature of the Constitution to be more than “a mere compromise.”

On September 26, 1787, Sherman and Ellsworth, back in Connecticut just over one week after the signing of the Constitution in Philadelphia, recommended that Connecticut ratify the Constitution. They emphasized that “the equal representation of the states in the Senate” would secure the equal rights of the states. Sherman, in the second of his Citizen of New Haven Letters, takes the partly federal, partly national settlement seriously: “the rights of the people will be secured by a representation in proportion to their numbers in one branch of the legislature, and the rights of the particular states by their equal representation in the other branch.”

Dickinson of Delaware defends the partly federal-partly national accommodation on grounds of principle: “It has been said that this representation was a mere compromise. It was not a mere compromise. The equal representation of each state in one branch of the legislature, was an original substantive proposition, made in convention, very soon after the draft offered by Virginia.… The proposition was expressly made upon… principle.”

Act III: The Committee of Detail Report

August 13: Dickinson, “Experience must be our only guide”

There were ten recorded votes today. Eleven states voting. Pennsylvania is divided on the fifth vote. Wilson and Gouverneur Morris spoke before the divided vote and Wilson after the divided vote. So were there 1 or 3 or 5 other delegates present?

Hamilton makes a rare appearance. He hasn’t been clearly present since he left the Convention on June 30. And after today, he is gone again until September 6. He remains for the last eleven days in order to sign the Constitution on September 17.

Why is he in town today? Why does he leave so rapidly again? There has been no New York quorum since July 10 and New York doesn’t have a quorum for the remainder of the Convention. Yet Hamilton speaks out on the first motions of the day concerning the citizenship requirement for holding office and he actually puts his signature to the Constitution on September 17.

The Committee of Detail Report proposition on the table was that “Every member of the House… shall have been a citizen of the United States for at least seven years before his election.” Hamilton, born in the British West Indies, along with natural born Madison, supported the effort of Wilson, born in Scotland, and Randolph, another natural born American, to change the seven-year citizen requirement to four years. In fact, Hamilton thought that the issue should be left to the people of each generation to decide and he proposed such a motion. Butler of South Carolina and Williamson of North Carolina opposed this attempt to “increase” the influence of “foreigners into our public councils.”

1. Madison records the vote thus: “QUESTION ON COL. HAMILTON’S MOTION. NH, NO; MASS, NO; CT, AY; NJ, NO; PA, AY; DEL, NO; MD, AY; VA, AY. NC, NO; SC, NO; GEO, NO.” The vote in favor of Hamilton’s motion to reduce the citizenship requirement for election to first branch was defeated 4-7. Attempts to increase the citizen requirement to nine years and lower it to five years were defeated.
2. Gouverneur Morris moved that this seven year rule should not affect “foreigners now citizens.” Madison records the vote thus: “QUESTION ON THE PROVISO OF MR. GOVR. MORRIS IN FAVOR OF FOREIGNERS NOW CITIZENS. NH, NO; MASS, NO; CT, AY; NJ, AY; PA, AY; DEL, NO; MD, AY; VA, AY. NC, NO; SC, NO; GEO, NO.” It was defeated 5-6 although New Jersey changed its vote in 1).

These are close votes and it shows the sectional division over immigration. The three deep-south states of North Carolina, South Carolina, and Georgia are wary of how long it takes to become an American and whether the American republics should pay more attention to the length of time it takes to become an American.

Vote 8 concerned Randolph’s motion to reinstate the money bills provision in Article 4, Section 5 of the Committee of Detail Report. But to be fair, note that New Hampshire and Massachusetts are just as concerned about how long it takes an immigrant to become an American.

On August 11, Randolph persuaded the Convention to reconsider the recent vote to strike the money bills provision, namely that the Senate could not alter money bills that were to originate in the House. The issue was debated thoroughly on August 13. Mason and Randolph saw a principle at sake: the revolutionary principle of no taxation without representation. Since the states were represented in the Senate, the Senate should not be able to alter the decision of the House on money bills. Madison saw no issue of principle in the money bills feature, and failed to see what principle allowing the Senate to alter House decisions would be violated.

At this moment, Dickinson made his famous observation that “experience must be our only guide. Reason may mislead us.”

(This remark by Dickinson, made within the context of what seems like a rather mundane debate about the origination of money bills, has been taken by historians like Douglass Adair to capture the entire disposition of the delegates during the total deliberations. The American Founders were practical men, the story unfolds, who let experience be their guide rather than men of reason — the specter of the French Revolution and the Reign of Terror in the name of abstract reason in 1790s France is probably haunting twentieth century American historians with moderate inclinations — be their guide.)

Mason and Randolph persuaded a majority of the state delegations to restore the original feature of the Committee of Detail Report that granted the first branch exclusive money bills original and final authority over money bills.

Madison gives details of the August 13 vote. It is accompanied by a footnote explanation concerning Washington’s vote: “N. H. ay. Mass. ay. Ct. no. N. J. no. PA. no. Del. no. Md. No. Virga. ay. Mr Blair & Mr M. no-Mr. R. Col. Mason and General Washington* ay. N. C. ay. S. C. no. Geo. no [Ayes-4; noes-7.]”

*”He disapproved & till now voted agst. the exclusive privilege. He gave up his judgment he said, because it was not of very material weight with him & was made an essential point with others, who if disappointed, might be less cordial in other points of real weight.”

Immediately after this vote, the delegates voted on the following proposition: Money bills shall originate in the House and be able to be amended by the Senate.

Madison enumerates the outcome of this vote: “NH. ay. Mass. ay. Ct. No. NJ. No. PA. No. Del. no. Md. No. VA. ay. NC .ay. SC. No. Geo. No.” [Ayes 4-noes 7]

This is exactly the same numerical vote as the previous one. There is a wrinkle that must be mentioned. Contra Madison, William Jackson’s Journal indicates that Virginia voted “no” on the second vote!

Whether Madison is correct, or Jackson is correct, about the Virginia vote, Washington cast the decisive vote in the Virginia delegation. With Blair and Madison, if Madison is correct, or with Mason and Randolph, if Jackson is correct.

August 21: Report of Committee of 11

There were seven recorded votes today. Eleven states present and voting. North Carolina was divided on the second vote and Maryland was divided on the fourth vote. All four delegates from each state were present. Massachusetts was absent on the fourth vote. Since Gerry and Gorham spoke today, it is reasonable to assume that King and/or Strong were absent for at least part of the day.

The Committee of 11 on State Debts reported today and although there were no major conflicts generated by the report, it is valuable to reflect on what the Committee recommended. The suggestion was to assume debts specifically incurred on behalf of “the common defense and general welfare” rather than have the proposition open-ended to cover just about any debt.

What are we to make of the fact that George Clymer and Thomas Fitzsimons of Pennsylvania spoke today? Prior today, there are only two days on which Clymer was clearly present. Over the remaining 22 days of the Convention, he was clearly present on eight of those days. Fitzsimons’s situation is just as curious. Prior today, there are only two days on which Fitzsimons was clearly present. Over the remaining 22 days of the Convention, he was clearly present on seven of those days. What, if anything, are we to infer from their “speaking up” in the last three weeks compared with their “virtual silence” during the first three months?

On August 21, the Virginia delegates divided over the taxation of exports. And the interesting point here is that Blair sided with Mason and Randolph leaving Madison and Washington in the minority within the Virginia delegation.

The division was on the sixth motion of the day by Madison to allow 2/3 of each House to tax exports. The motion failed on a 6-5 vote:

N.H ay. Mass. ay. Ct. no N.J. ay. Pa. ay. Del. ay. Md. no.
Va. ay. (Col. Mason, Mr. Randolph, Mr. Blair, no. Genl. Washington & J.M. ay.)
N.C. ay. S.C. ay. Geo. ay.

The second division was on the seventh motion of the day to affirm that no tax whatsoever would be laid on exports. This passed 7-4. Madison recorded the vote and, as in the previous vote, only identified how the Virginia delegation voted:

N.H no. Mass. Ay. Ct ay. N.J. no. Pa no. Del. no. Md ay.
Va ay (Genl W and J.M. no) N.C. ay. S.C. ay. Geo. ay.

So here are two cases where Madison and Washington not only collaborated within the Virginia delegation, but also were defeated within their own delegation. The absence of McClurg is taking its toll in August on the previously united Virginia delegation.

Toward the end of the day, the delegates took up Article VII, Section 4 that prohibited Congress from ever prohibiting the slave trade or even discouraging its continuance through taxing the importation of slaves.

As we have seen, there are at least three positions that have emerged on the issue of the slave trade.

The first position wants to 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 is the position articulated by Luther Martin of Maryland today and supported by the Virginia delegation and delegates from New Hampshire, Delaware, and Pennsylvania.

Rutledge, the chairman of the Committee of Detail, best represents the second position today. This position is further articulated on subsequent days by the other delegates from South Carolina and supported by the members of the North Carolina and Georgia delegations: “Religion and humanity had nothing to do with this question –— Interest 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.”

Interestingly, the slave trade issue — and all sides knew that what was decided on the slave trade would be a precursor to slavery itself was most hotly discussed between the “northern-Southern” states of Maryland, Delaware, and Virginia on the one hand, (joined by New Hampshire and Pennsylvania) and the “southern-Southern” states of North Carolina, South Carolina, and Georgia!

The third position was that occupied by Connecticut. Ellsworth summed up the issue thus: He was in favor of “leaving the clause at is stands. Let every state import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves.” This attracted some support from Massachusetts.

What about New Jersey? Matters are unclear and the delegation is stretched since it is just meeting the internal quorum requirement of three. David Brearly wrote from Philadelphia to Paterson on August 21 urging him to return. He noted that the delegates would be here until the end of September at the rate things are going. “Cannot you come down at assist us —– we have many reasons for doing this; our duty, in the manner we now sit, is quite too hard for three, but a much stronger reason is, that we actually stand in need of your abilities.”

August 22: Article VII, Section 4 Slavery 

There were six recorded votes today. Ten states voting on the first vote — Massachusetts absent — and eleven states present and voting on the remaining five votes. North Carolina was evenly divided on the fourth vote. All delegates must be present.

The three sides on the slave trade issue continued their arguments over the clause in the Committee of Detail Report that prohibited Congress from ever abolishing or restricting the slave trade.

The three sides are still clear. 1) Mason of Virginia supported Martin of Maryland: “the infernal traffic originated in the avarice of the British Merchants.” 2) Pinckney of South Carolina: “If slavery be wrong, it is justified by the example of all the world.” And 3) Ellsworth reminded everyone to be cautious: “Slavery in time will not be a speck in our country.”

A Slavery Committee of 11 to reexamine the total ban on the slave trade is created: “LANGDON, KING, JOHNSON, LIVINGSTON, CLYMER, DICKINSON, L. MARTIN, MADISON, WILLIAMSON, C.C. PINCKNEY, BALDWIN.”

Once again, we see here as we have seen earlier — e.g. the composition of the Gerry Committee on July 2 — the change in the mood of the Convention. The delegates want a principled compromise on the slave trade clause. One that recognizes that the provision of a permanent Congressional ban in the Committee of Detail Report is inconsistent with the Declaration of Independence and yet one that is willing to go along with the temporary continuance of the slave trade on sheer ground of political expediency so that the three states from the deep south won’t bolt the Constitution and vote in favor of disunion.

What is this Committee of 11 likely to come up with concerning reestablishing the ability of Congress to regulate the slave trade, but not at once?

Side # 1. Langdon “was strenuous for giving the power to the general government” to control the slave trade. Dickinson, Martin, and Madison want an end to the slave trade on the grounds of principle. Dickinson, “considered it as inadmissible on every principle of honor and safety that the importation of slaves should be authorized to the States by the Constitution.” Martin and Madison concur. We don’t know where Clymer stands on the issue, but we sure know where his colleagues Wilson and Gouverneur Morris stand: they want Congress to have the power to regulate the slave trade.

Side # 2. Pinckney, from South Carolina, and Williamson, from North Carolina, reminded the delegates of political reality: be careful not to drive the deep South into bolting the union. Pinckney and Rutledge stated that “unless the right to import slaves be untouched” South Carolina won’t sign. Baldwin of Georgia was not interested in “an attempt to abridge (Georgia) one of her favorite prerogatives. If left to herself, she may probably put an end to the evil.” But don’t demand it.

Side # 3. Sherman of Connecticut is clear: “it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non.” No one from New Jersey addressed the issue. So we have no hunch where Chairman Livingston stands on the issue. Massachusetts seems accommodating. King says the whole “subject should be considered in a political light only.” Which means the slave trade for him at the moment is not an overwhelming matter of principle.

Act IV: The End is in Sight

September 10: Randolph articulates his difficulties

Eight votes recorded today. Eleven states present and voting. New Hampshire divided on four votes. Both delegates present.

The delegates discussed alternative ways to amend the proposed Constitution. There was general agreement that it had to be easier than the Articles of Confederation but not as easy as passing regular day-to-day legislation. And there was a great deal of certainty by this very late stage in the Convention that since we are BOTH partly national AND partly federal then some combination of the Congress and the state legislatures in the amendment process was going to have to take place. Yet again the Connecticut Compromise became the model. Just a few days earlier it helped settled the question of how to elect the President. Today, it helped solved the question of how to amend the Constitution.

This is a day of what I will call irony, acceptance, and defeat. And the attendance record helps us to appreciate.

What is fascinating about the application of the Connecticut Compromise to the amending the Constitution Compromise is that, ironically, Madison took the lead and proposed the two ways of proposing an amendment and the two ways of adopting an amendment that became the very language of Article V of the Constitution one week later. This is the same Madison who had fought the partly national, partly federal notion for ten weeks on the ground that it was a mere deal rather than a principled alternative to the wholly national OR wholly federal true principled alternatives. But it is the partly national, partly federal principle that undergirds Madison’s motion of the Amendment article of the Constitution and the acceptance by the delegates. And, to double the irony today, guess who seconded Madison’s partly national, partly federal motion to amend the Constitution? Alexander Hamilton. He had just returned from a two-month absence from the Convention!

The motion passed 9-1-1. New Hampshire was divided, and Delaware voted “no.” But what is critical to note is the widespread acceptance by virtually all sides in the fourth month conversation of the partly national, partly federal nature of the Constitution. Both Madison and Sherman had moved to a new level of understanding since those early days of June.

The “defeat” part of the “irony, acceptance, and defeat” notion comes in the form of Randolph’s announcement that he is unable and unwilling to put his signature to the Constitution. The irony is that it was the Randolph Plan or the Virginia Plan that framed the entire conversation, and here, with one week to go, Randolph is saying I lost and I am not signing. How can this be?

Over the last week or so, several potential “last straws” have made their appearance most especially, and recently, the burial of the money bills provision of the Connecticut Compromise. The “last straw,” today, was 1) the conversation over the mode of ratification of the Constitution, 2) how many state ratifying conventions would be need to give approval, and 3) what role the existing Confederation Congress, if any, should play in the process. The reluctance shown by the delegates to subject their work to the approval of the Confederation Congress —– the third last straw –— turned out to be the very last straw!

So, in “defeat,” Randolph lists multiple objections to the proposed Constitution. And these objections, both structural and in terms of powers, become critical not only in the campaign over ratification, but during the last week of the Convention when attempts to reach out to Randolph, and, soon, Gerry and Mason, to have them sign are made. They argued, among other things that even tough the partly national, partly federal solution may have settled the federal aspect of the Constitution, they had concerns that the structure of the House, the Senate, and the Presidency deviated from the principles of republican government. And, out of the blue, again as it were, they object, for the very first time to the potential danger lurking behind the interstate commerce clause and the “elastic” necessary and proper clause.

Randolph declared he would not be able to sign the Constitution. Now this seems a bit odd. After all, it was the Virginia Plan, or the Randolph Plan, that got us started, and the Randolph plan was indeed a radical departure: It rooted out the structural components of the Articles. Randolph had justified the Virginia Plan because it conformed to republican principles. He didn’t seem to be bothered that the plan consciously departed from traditional state based federalism. Now, in September, the republican propositions had, however, much to his regret, been, in his opinion, widely and irreconcilably departed from.

This is an interesting proposition to explore. He suggested that the Virginia Plan was wholly republican. He is now suggesting that the Committee of Style report, which is awfully close to the final Constitution, has departed from republican principles. In this state of things, it was his idea that the state conventions should be at liberty to offer amendments to the plan. Now you can just imagine a huge, “Oh no,” from Madison. Here we are on the 10th of September, we’ve finally produced this document, within one week of going home, and what is Mr. Randolph proposing? He is proposing that we take this plan, go to the 13 state conventions, have another chat, and invite the people who are there to come up with their own proposals and recommendations, and come back and meet again!

And I can just see Madison saying, “Heavens. We’re lucky to get out of this one. Can you imagine us going to 13 state conventions, inviting another discussion, bundling up all those suggestions, and coming up with another Committee of Detail? No. One miracle is enough.” Randolph admitted that he did not expect to succeed in persuading his fellow delegates to hold a Second Convention, but he felt duty-bound to make the attempt. Madison wanted to just send the plan out without people being at liberty to amend it, just voting up or down. What in fact happened was that the ratifying conventions thought they were at liberty to do whatever they wanted. And as we shall see a number of the conventions did offer amendments. The question that we will be looking at is: How binding, how conditional, how important were those proposals?

At the Convention, Randolph took the opportunity to state his objections. There are twelve of them. To what extent are these objections insufficiently federal, that is the states aren’t sufficiently protected? And to what extent are these objections republican objections, that is, it has departed from certain Whig republican principles? Antifederalism has been associated, unfortunately, with simply a love of states rights, even a secessionist understanding. If we leave Antifederalism in that mode, there’s nothing to learn from the Antifederalist objections. What I’d like to propose, instead, that the Antifederalists provide the best critique of the constitution ever, bar none, certainly more elevated than anything we find today.

Number one on Randolph’s list of objections is that the Senate is being made the court of impeachment for trying the executive. In other words, states Randolph, that’s a violation of the doctrine of the separation of powers.

Secondly, he objected to the provision in the Committee of Detail Report required Congress to secure three-quarters instead of two-thirds of each house to overrule the President. On September the 10th, the Committee of Style Report also required three quarters of the Congress to overrule the President. Within the next seven days, however, the delegates to the Convention, perhaps as a last minute effort to accommodate Randolph, lowered it to two-thirds.

Randolph objected, thirdly, to what he called “the smallness of the number of the representative branch.” Now that objection becomes a critical dimension of the Antifederalist critique. How can you really have a representative branch when you have so few representatives? And if you start off with 1 representative for 65,000 people which is stretching the concept of representation almost beyond recognition it’s going to get worse. That is Randolph’s concern and the Antifederalist critique.

When Randolph made that point on September the 10th, both the Committee on Detail and the Committee of Style proposed a standard of one representative for 40,000 people. (That meant 1 representative for 39,999 was constitutional, but 1 for 40,001 was not constitutional. George Washington then uttered his first recorded remark at the Convention. He says, what if we change the standard to 1 to 30,000? And everybody says, “Yes.” It is clear that the reason why Washington proposed the change was to accommodate Randolph.

Perhaps Randolph would sign on if the veto override was changed from three quarters to two-thirds? Perhaps Randolph would sign on if the representation ratio were changed from one for forty thousand to one for thirty thousand? He didn’t, but what the two offers demonstrate is that the numbers surrounding the veto override and the scheme of representation are negotiable. It is the concept of representation that is important, but whether it’s one for thirty thousand, one for forty thousand, is negotiable. I’m not trying to say that Washington and others were trying to appease Randolph, but even at this late stage, the Framers are making the distinction between what is principle and what is negotiable.

Randolph’s fourth objection is “the want of limitation to a standing army.” Now this is a very traditional Antifederalist position and one that persisted way into the twentieth century. The traditional premise is that standing armies in times of peace are dangerous. Standing armies with nothing to do but fight their own citizens are dangerous. But the Constitution says there shall be standing armies, and so the Antifederalist position says, “You’re going to have trouble on your hands.” Madison’s response is, “No, we’re not going to have trouble on our hands because the check is the appropriations process, and appropriations occur every two years.” The Antifederalists weren’t convinced by this argument. The question is why did Randolph become so attached with Antifederalist concerns at this late stage in the Convention? After all, he was the delegate in the June gloom who urged fellow delegates to shun scruples of detail when the future of the republic was at stake.

Number five on Randolph’s list is a concern with the meaning of the necessary and proper clause. The necessary and proper clause emerges in the Committee on Detail report. And the delegates expressed no concern with the clause at that time. It also appears in the Committee of Style Report. This time, however, the delegates seem to be saying, “Well, what did we just decide?” thus underscoring Randolph’s concerns.

Interestingly, these three delegates were not able to leverage their minority position concerning the power of Congress during the last week of the Convention as South Carolina and Georgia had done over the power of Congress over slavery earlier in the Convention to extract many concessions from the majority. I think the answer to the question of why their “defeat” at the hands of the entire Convention is that 1) they did not have the support of the other members of their own delegation where as 2) the South Carolina and Georgia delegations were in solid agreement and 3) they could have raised these issues much earlier in the conversation when positions were still fluid and alterable.

This is a matter of too much too late for Randolph, Gerry, and Mason to have much leverage with the other delegates.

September 17: Constitution signed

There were two recorded votes today. Eleven states present and voting. The delegations – as distinct from the individual delegates – unanimously agreed on signing the Constitution and “to deliver the journals and papers to the President.”

With the passage of Article VII, the delegates had agreed that the plan of the Constitution would become “this Constitution” upon the ratification nine out of 13 specially called state ratifying conventions. There were two important changes from the adoption and amending provisions of the Articles of Confederation. First, all thirteen state legislatures had to agree before adoption or amendment could occur under the Articles. Now nine out of thirteen state conventions had to concur before the Constitution could be adopted. And, secondly, now if nine state ratifying conventions concur, then they can create a government regardless how the other four state conventions vote. In return the potentially four non-ratifying states would not be forced into the union.

Even on the last day, September 17, Washington reached out to Randolph. He spoke for the first time at the Convention. He urged the delegates to increase the size of the representative branch from I for 40,000 to 1 for 30,000. The delegates agreed, but it was not enough to persuade Randolph to sign. One would have thought that if anyone could have encouraged Randolph to sign, it would have been Washington.

And there were several testimonials from various delegates that must have resonated with Randolph et al. Wise old Franklin indicated that this was not a perfect Constitution and it is not a perfect world and life isn’t perfect. But this is a more perfect Constitution. (Madison picks up on this theme of “more perfect” in Federalist 37.) Franklin has the last question: is the sun on Washington’s chair a rising sun or a setting sun? (Franklin, apparently, was not concerned with the existence of a perfect sun.) Isn’t “a more perfect union,” better than “a less perfect union?”

Instead of leaning in the direction of prudence, however, Randolph issued the following grim warning: “nine states will fail to ratify the plan and confusion must ensue.”

Franklin’s optimistic appeal to the improvement in 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 and the start of the Six Stages of Ratification. If the delegates in Philadelphia show up at the ratifying conventions and show their support for the Constitution, the future looks bright. But, on the other hand, Rhode Island probably won’t ratify; Yates, Lansing, and George Clinton have already begun their opposition in New York; who knows what will happen in the deep South, and then there is Virginia with Mason and Patrick Henry ready to do battle. But this “is the future optimistic or pessimistic?” is getting ahead of where the delegates really are today.

Tomorrow, in effect, let the ratification campaign begin. Tonight is the time to celebrate the signing of the Constitution. Accordingly, “the members adjourned to the City Tavern, dined together and took a cordial leave of each other.”