Monday, September 10 | Debates in the Federal Convention of 1787
by James Madison
In Convention, — Mr. GERRY moved to reconsider Article 19, viz: “On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose,” (see the sixth of August).
This Constitution, he said, is to be paramount to the State Constitutions. It follows, hence, from this article, that two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State Constitutions altogether. He asked whether this was a situation proper to be run into.
Mr. HAMILTON seconded the motion, but, he said, with a different view from Mr. GERRY. He did not object to the consequence stated by Mr. GERRY. There was no greater evil in subjecting the people of the United States to the major voice, than the people of a particular State. It had been wished by many, and was much to have been desired, that an easier mode of introducing amendments had been provided by the Articles of the Confederation. It was equally desirable now, that an easy mode should be established for supplying defects which will probably appear in the new system. The mode proposed was not adequate. The State Legislatures will not apply for alterations, but with a view to increase their own powers. The National Legislature will be the first to perceive, and will be most sensible to, the necessity of amendments; and ought also to be empowered, whenever two thirds of each branch should concur, to call a Convention. There could be no danger in giving this power, as the people would finally decide in the case.
Mr. MADISON remarked on the vagueness of the terms, “call a Convention for the purpose,” as sufficient reason for reconsidering the article. How was a Convention to be formed? — by what rule decide? — what the force of its acts?
On the motion of Mr. GERRY to reconsider, —
Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; New Jersey, no, — 1; New Hampshire, divided.
Mr. SHERMAN moved to add to the article: “or the Legislature may propose amendments to the several States for their approbation; but no amendments shall be binding until consented to by the several States.”
Mr. GERRY seconded the motion.
Mr. WILSON moved to insert, “two thirds of,” before the words, “several States;” on which amendment to the motion of Mr. SHERMAN, —
New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, aye, 5; Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia, no, — 6.
Mr. WILSON then moved to insert, “three fourths of,” before “the several States”; which was agreed to, nem. con.
Mr. MADISON moved to postpone the consideration of the amended proposition, in order to take up the following:
“The Legislature of the United States, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths, at least, of the Legislatures of the several States, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the United States.”
Mr. HAMILTON seconded the motion.
Mr. RUTLIDGE said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property, and prejudiced against it. In order to obviate this objection, these words were added to the proposition;1 “provided that no amendments, which may be made prior to the year 1808 shall in any manner affect the fourth and fifth sections of the seventh article.” The postponement being agreed to, —
On the question on the proposition of Mr. MADISON and Mr. HAMILTON, as amended, —
Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Delaware, no, — 1; New Hampshire, divided.
Mr. GERRY moved to reconsider Articles 21 and 22; from the latter of which “for the approbation of Congress,” had been struck out. He objected to proceeding to change the Government without the approbation of Congress, as being improper, and giving just umbrage to that body. He repeated his objections, also, to an annulment of the Confederation with so little scruple or formality.
Mr. HAMILTON concurred with Mr. GERRY as to the indecorum of not requiring the approbation of Congress. He considered this as a necessary ingredient in the transaction. He thought it wrong, also, to allow nine States, as provided by Article 21, to institute a new Government on the ruins of the existing one. He would propose, as a better modification of the two Articles (21 and 22,) that the plan should be sent to Congress, in order that the same, if approved by them, may be communicated to the State Legislatures, to the end that they may refer it to State conventions; each Legislature declaring, that, if the convention of the State should think the plan ought to take effect among nine ratifying States, the same should take effect accordingly.
Mr. GORHAM. Some States will say that nine States shall be sufficient to establish the plan; others will require unanimity for the purpose, and the different and conditional ratifications will defeat the plan altogether.
Mr. HAMILTON. No convention convinced of the necessity of the plan will refuse to give it effect, on the adoption by nine States. He thought this mode less exceptionable than the one proposed in the article: while it would attain the same end.
Mr. FITZSIMONS remarked, that the words, “for their approbation,” had been struck out in order to save Congress from the necessity of an act inconsistent with the Articles of Confederation under which they held their authority.
Mr. RANDOLPH declared, if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. He had from the beginning, he said, been convinced that radical changes in the system of the Union were necessary. Under this conviction he had brought forward a set of republican propositions, as the basis and outline of a reform. These republican propositions had, however, much to his regret, been widely, and, in his opinion, irreconcilably departed from. In this state of things, it was his idea, and he accordingly meant to propose, that the State conventions should be at liberty to offer amendments to the plan; and that these should be submitted to a second General Convention, with full power to settle the Constitution finally. He did not expect to succeed in this proposition, but the discharge of his duty in making the attempt would give quiet to his own mind.
Mr. WILSON was against a reconsideration for any of the purposes which had been mentioned.
Mr. KING thought it would be more respectful to Congress, to submit the plan generally to them; than in such a form as expressly and necessarily to require their approbation or disapprobation. The assent of nine States he considered as sufficient; and that it was more proper to make this a part of the Constitution itself, than to provide for it by a supplemental or distinct recommendation.
Mr. GERRY urged the indecency and pernicious tendency of dissolving, in so slight a manner, the solemn obligations of the Articles of Confederation. If nine out of thirteen can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.
Mr. SHERMAN was in favor of Mr. KING’S idea of submitting the plan generally to Congress. He thought nine States ought to be made sufficient; but that it would be better to make it a separate act, and in some such form as that intimated by Col. HAMILTON, than to make it a particular article of the Constitution.
On the question for reconsidering the two articles, 21 and 22, —
Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, Georgia, aye, — 7; Massachusetts, Pennsylvania, South Carolina, no, — 3; New Hampshire, divided.
Mr. HAMILTON then moved to postpone Article 21, in order to take up the following, containing the ideas he had above expressed, viz:
“Resolved, that the foregoing plan of a Constitution be transmitted to the United States in Congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the Legislatures of the several States, to the end that they may provide for its final ratification, by referring the same to the consideration of a Convention of Deputies in each State, to be chosen by the people thereof; and that it be recommended to the said Legislatures, in their respective acts for organizing such Convention, to declare that, if the said Convention shall approve of the said Constitution, such approbation shall be binding and conclusive upon the state; and further, that if the said convention shall be of opinion that the same, upon the assent of any nine States thereto, ought to take effect between the States so assenting, such opinion shall thereupon be also binding upon such a state, and the said Constitution shall take effect between the States assenting thereto.”
Mr. GERRY seconded the motion.
Mr. WILSON. This motion being seconded, it is necessary now to speak freely. He expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the Convention, on the approbation of Congress. He declared it to be worse than folly, to rely on the concurrence of the Rhode Island members of Congress in the plan. Maryland had voted, on this floor, for requiring the unanimous assent of the thirteen states to the proposed change in the Federal system. New York has not been represented for a long time past in the Convention. Many individual deputies from other States have spoken much against the plan. Under these circumstances, can it be safe to make the assent of Congress necessary? After spending four or five months in the laborious and arduous task of forming a Government for our country, we are ourselves, at the close, throwing insuperable obstacles in the way of its success.
Mr. CLYMER thought that the mode proposed by Mr. HAMILTON would fetter and embarrass Congress as much as the original one, since it equally involved a breach of the Articles of Confederation.
Mr. KING concurred with Mr. CLYMER. If Congress can accede to one mode, they can to the other. If the approbation of Congress be made necessary, and they should not approve, the State Legislatures will not propose the plan to Conventions; or if the States themselves are to provide that nine States shall suffice to establish the system, that provision will be omitted, every thing will go into confusion, and all our labor be lost.
Mr. RUTLEDGE viewed the matter in the same light with Mr. KING.
On the question to postpone, in order to take up Colonel HAMILTON’S motion, —
Connecticut, aye, — 1; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, — 10.
A question being then taken on the Article 21, it was agreed to unanimously.
Colonel HAMILTON withdrew the remainder of the motion to postpone Article 22; observing that his purpose was defeated by the vote just given.
Mr. WILLIAMSON and Mr. GERRY moved to reinstate the words, “for the approbation of Congress,” in article 22; which was disagreed to, nem. con.
Mr. RANDOLPH took this opportunity to state his objections to the system. They turned on the Senate’s being made the court of impeachment for trying the Executive, — on the necessity of three fourths instead of two thirds of each House to overrule the negative of the President, — on the smallness of the number of the Representative branch, — on the want of limitation to a standing army, — on the general clause concerning necessary and proper laws, — on the want of some particular restraint on navigation acts, — on the power to lay duties on exports, — on the authority of the General Legislature to interpose on the application of the Executives of the States, — on the want of a more definite boundary between the General and State Legislatures, — and between the General and State Judiciaries, — on the unqualified power of the President to pardon treasons, — on the want of some limit to the power of the Legislature in regulating their own compensations. With these difficulties in his mind, what course, he asked, was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in tyranny? He was unwilling, he said, to impede the wishes and judgment of the Convention, but he must keep himself free, in case he should be honored with a seat in the Convention of his State, to act according to the dictates of his judgment. The only mode in which his embarrassment could be removed was that of submitting the plan to Congress, to go from them to the State Legislatures, and from these to State Conventions, having power to adopt, reject, or amend; the process to close with another General Convention, with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government. He accordingly proposed a resolution to this effect.
Doctor FRANKLIN seconded the motion
Colonel MASON urged and obtained that the motion should lie on the table for a day or two, to see what steps might be taken with regard to the parts of the system objected to by Mr. RANDOLPH.
Mr. PINCKNEY moved, “that it be an instruction to the Committee for revising the style and arrangement of the articles agreed on, to prepare an address to the people, to accompany the present Constitution, and to be laid, with the same, before the United States in Congress.”
The motion itself was referred to the Committee, nem. con.2
Mr. RANDOLPH moved to refer to the Committee, also, a motion relating to pardons in cases of treason; which was agreed to, nem. con.
Adjourned.
1 The Printed Journal makes the succeeding proviso as to sections 4 & 5. of art: VII moved by Mr. Rultedge, part of the proposition of Mr. Madison.
2 These motions not entered in the printed Journal.