Two months into the Convention, the delegates could finally see a light at the end of the tunnel. Delegates had debated the resolutions presented by the delegation of Virginia, amended them, and debated them again. Before sending the revised amendments to a Committee of Detail that would create a rough draft of the Constitution, however, James Wilson and James Madison fought unsuccessfully to restore a constitutional provision they thought critical – a Council of Revision.

Council of Revision

Although the plan had been rejected twice, Wilson and Madison once again proposed that a Council of Revision be added to the Constitution. Consisting of the executive and judicial branch, the Council would be called upon to assess the constitutionality of legislation before becoming law. Madison explained that “experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex.” He believed that this tendency “was the real source of danger to the American Constitution.” Madison urged his colleagues to protect against this grave threat by allowing the judiciary to fortify the president in defending against the overreach of the legislature.

Despite Wilson and Madison’s passionate (and repeated) argument for the Council of Revision, a number of other delegates raised serious concerns. Elbridge Gerry argued that the Council would establish an “improper coalition” between the president and the judiciary. It would be a violation of the separation of powers. Luther Martin pointed out that not only would it be dangerous to mix the powers of the two branches, but that it would be inappropriate for judges to be involved in making laws. The judiciary’s role was to exposit the laws, not make them. On July 21^st, Wilson and Madison’s motion was narrowly defeated by a 4-3-2 vote.

Ratification

Finally, on July 23, the delegates began to discuss ratification of the new Constitution. Oliver Ellsworth and William Paterson motioned to refer the Constitution to the state legislatures for ratification.

The debate heated as several delegates voiced their disagreement. George Mason explained his belief that the Constitution should not be sent to the legislatures, but “to the people with whom all power remains that has not been given up in the Constitutions derived from them.” He feared that if the Constitution was only ratified by the state legislatures – and not the people – it would be subject to criticism and easily reversed. Madison echoed Mason’s concern, explaining “the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution.” For the Constitution to become the supreme law of the land – transcending all other laws and pacts – it must be ratified by the people.

Mason, Madison, and others in disagreement won out, and Ellsworth and Paterson’s motion was defeated 7-3. The delegates then voted 9-1 that, once approved by the Continental Congress, the Constitution would be sent to assemblies chosen by the people for ratification.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

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As the convention pressed into the late days of July, debate turned to the revised Virginia Plan’s resolutions on the Executive Branch.

The ninth resolution proposed that “a National Executive be instituted to consist of a single person, to be chosen by the National Legislature for the term of seven years…”. All delegations present agreed that the Executive ought to be composed of a single individual, but other issues raised deep differences between delegates. These differences were chiefly on key principles of republicanism and separation of powers.

Regarding the means of election, Gouverneur Morris of Pennsylvania vigorously opposed election by the national Legislature. Though one of the most aristocratic delegates by background and temperament, Morris feared that election by the Legislature would violate the principle of separation of powers, making the Executive a mere “creature” of that branch. He thought the judgment of the people as a whole would be far more likely to result in the election of a “man of distinguished character,” or of “continental reputation”.

But outside of his fellow Pennsylvanian James Wilson, Morris found little support for direct popular election for the Executive. Charles Pinckney of South Carolina voiced his opinion that it is better to have a few “active and designing men” make this choice. George Mason of Virginia likened Morris’ proposal to asking a blind man to name the colors before him.  The convention shot down Morris’ proposal and affirmed the original—though this solution would only be temporary.

Debate on issues of the term of and eligibility for office was also inconclusive. Momentarily postponing discussion of term length, delegates rejected a proposal to make the Executive ineligible for re-election. On the whole, delegates viewed re-election as an incentive that would drive the Executive to perform his proper duties. But the idea of imposing term limits on the Executive was dropped in favor of a proposal by Virginia’s James McClurg to strike the 7 years term and insert “during good behavior.”

Because the Executive was to be elected by the national Legislature, and because the proposal for making the Executive ineligible for re-election had been rejected, McClurg  – joined by Morris – thought that the only way to ensure a proper separation of powers was to allow the Executive to remain in office, effectively, for life. Madison concurred, drawing an analogy between the Judicial and Executive branches, both of which he believed required complete separation from the power of the Legislature to avoid being absorbed by it.

Others did not accept this logic. Roger Sherman thought the measure redundant. Re-election logically entails that the Executive is behaving properly—especially since the national legislative, the few “active and designing men,” are overseeing the selection process. Mason also bristled at the proposal of an Executive that would serve during good behavior, denouncing that such a policy would lead to the re-establishment of a hereditary monarchy in the new Republic within the lifetime of his children or grandchildren, if not his own. Surely no state, he lectured, “had so far revolted from Republican principles as to have the least bias” toward that proposal.

With the specter of monarchy having been raised, and with Mason having clearly challenged the commitment to republican principles of some of the convention’s leading members – including Madison and Morris – the delegations agreed unanimously to re-open discussion about the Executive. Luther Martin had moved to reconsider the eligibility requirement, in hopes of limiting the Executive to just one term of office. Gouverneur Morris took this opportunity, however, to rebut to Mason and make a case for extensive Executive power. “It has been a maxim in Political Science,” he explained, challenging Mason’s republican ideal, “that Republican Government is not adapted to a large extent of Country”. He reasoned that in a republican government – where the people are represented by the Legislative Branch – the Executive Branch is necessarily weak, and made a case that the Executive Branch “should be the guardian of the people, even of the lower classes, against Legislative tyranny.”

Morris continued to advocate that the Executive keep office during good behavior, but barring that proposed that the Executive be elected directly by the people. Madison (perhaps slightly chastened by Mason) concurred in recommending the Executive be selected by “the people at large,” downplaying his earlier suggestion that the Executive hold office during good behavior. Elbridge Gerry, who continued to display a knack for compromise, stated that both election by the national Legislature and by the people had disadvantages. He proposed a third way – a committee of electors chosen by state Executives. Oliver Ellsworth accepted the idea of electors, but suggested that state Legislatures select them. This compromise was easily approved, as was eligibility for re-election and – for a short time, at least – a six-year term.

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The eleventh anniversary of independence saw the Convention at an impasse. The delegates could not agree on the question of how to structure a legislative body for the union – because all knew this decision raised the question of whether they should merely strengthen the confederation, or create a new national government in its place.

The July 3-4 adjournment for Independence Day gave many delegates a respite from wearying debate. For eleven members of the committee chaired by Massachusetts’s Elbridge Gerry, however, debate continued, as they met on July 3 to discuss a practical solution to the issues that the Convention was struggling to solve. On July 4, delegates congregated at Philadelphia’s Race Street Church to hear a speech commemorating independence. On July 5, the fireworks resumed.

The Gerry Committee Report

When the Convention resumed its business on Thursday morning, July 5, the Gerry Committee was prepared with a report. The Committee, which consisted of one delegate from each of the eleven states represented at the Convention, was asked to handle the sensitive issue of representation in a union that some still view as federal but others are trying to make national. Elbridge Gerry (who had signed the Declaration of Independence in this same city eleven years ago) rose to explain the report to the Convention. The report had three parts, which gave form to the view that had been developing of a union partly national and partly federal:

1. The first branch of legislature will be elected by population (as the large states had called for) with states being apportioned one member for every 40,000 inhabitants.
2. All bills that raise and appropriate money will originate in the First House and shall not be amended by the Second House
3. In the second branch of the legislature each state will be represented equally.

Debate in the Assembly and in Committee

Gerry admitted to the Convention, after presenting the report, that it was a very thin compromise, and that Committee delegates “agreed to the Report merely in order that some ground of accommodation might be proposed”. None of the Committee members, he continued, was “under any obligation to support the Report”.

Nor were some of the Convention’s leading delegates inclined to support the Gerry Committee’s suggested compromise. Mr. Madison seems to have viewed the compromise as a crippling blow to the Virginia Plan, which had been designed to combat what Madison saw as the vices of the political system under the Articles of Confederation. He rose and in a long speech proclaimed his fear that “the Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U. S.” on the one hand, or of “displeasing these by justly gratifying the larger States and the majority of the people” on the other.

He then made the issue personal, recalling a statement made by Mr. Bedford (of Delaware) prior to the adjournment for Independence Day. Bedford, chafing against the nationalists’ plan, had challenged, “We have been told with a dictatorial air that this is the last moment for a fair trial in favor of a good Government. It will be the last indeed if the propositions reported from the Committee go forth to the people.” Bedford seemingly taunted the large states, saying that they “dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” Though Bedford qualified that “He did not mean by this to intimidate or alarm,” Madison responded to that comment as if it were a threat, stopping just short of calling Bedford a turncoat, and hinting that the large states might just challenge stubborn states like Delaware to choose between joining the union and courting some foreign ally. Madison lectured, “if the principal States comprehending a majority of the people of the U. S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States would by degrees accede to it.”

Other nationalists joined Madison’s offensive against the compromise. James Wilson charged that the Committee exceeded its powers (a charge that seems ironic, given Wilson’s support of the Virginia Plan, which many thought exceeded the Convention’s mandate of simply revising the Articles of Confederation). Gouverneur Morris thundered against those who acted as if “we were assembled to truck and bargain for our particular States” and warned “This Country must be united. If persuasion does not unite it, the sword will.”

Perhaps sensing a concerted effort on the part of the nationalists to paint him as disloyal to the Confederation, Mr. Bedford, rose to state he had been misunderstood, and had no intention that Delaware or other small states should seek protection outside of the union. But others were not cowed by the bluster of the nationalists. Several delegates rose to offer support of the Gerry Committee’s report, or at least to a hearing of the report. None was more forceful in defense of giving the Gerry Committee report a hearing than George Mason. The surly Virginian was growing impatient, and cautioned quarrelsome colleagues that “the Report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation.”  But Mason was not about to finish there, proclaiming that “he would bury his bones in this City rather than expose his Country to the Consequences of a dissolution of the Convention without any thing being done.”

Mason’s stern words led directly to consideration of the provisions of the Gerry Committee’s report.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

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Well over a month into the convention, the delegates are still at odds over how to settle the question of representation in the new government. All believed that the answer to this question would determine whether the states would continue as distinct political societies, or whether the new national government would form one political society.

The notion of a national government had gained enough support that the delegations accepted a national legislature that would represent citizens, not states. For some, like Luther Martin, the Convention’s movement to this point appeared to have made an old world disappear. He “remarked that the language of the states being sovereign and independent, was once familiar and understood; though it seemed now so strange and obscure.” Others, like Madison, feared that the continuing attachment of some delegates to the sovereignty of the states would lead the states to perpetual war against one another.

Oliver Ellsworth, of Connecticut, however, “did not despair. He still trusted that some good plan of government would be devised and adopted.” Declaring that “we were partly national; partly federal,” Ellsworth pushed the need for compromise. He proposed that if the lower house of the national legislature is elected on the “national principle,” the upper house should be elected on the “federal principle”. Madison reports, “He trusted that on this middle ground a compromise would take place. He did not see that it could on any other. And if no compromise should take place, our meeting would not only be in vain but worse than in vain.”

The following day saw even more division among the delegates. Madison and James Wilson argued against this compromise, challenging that it would allow a minority to overrule a majority. Madison even went so far in defense of proportional representation as to propose that one house draw its representatives on the basis of all free inhabitants, and the other on the basis of free inhabitants plus slaves. Some defenders of state sovereignty actually called for the Convention to inform the governor of New Hampshire to send its delegates (who were not present) to help defend the interests of small states.

Help for the resolution came from an unexpected place. North Carolina delegate William Davie – who had yet to speak up during the Convention’s proceedings – agreed with Ellsworth, stating, “We were partly federal, partly national in our Union, and he did not see why the Govt. might (not) in some respects operate on the states, in others on the people.” James Wilson warmed to the idea, then Dr. Franklin offered warm words in support of compromise, then Madison indicated he might be open. There were dissenters on both sides, but at the end of the week, Saturday June 30, the makings of a compromise were there.

Davie’s support for Ellsworth’s compromise helped bring the issue to a vote. On July 2^nd the resolution was defeated in a 5-5-1 tie. Roger Sherman, seeing the delegations equally divided, complained, “We are now at a full stop.” But he challenged his fellow delegates not to give up, and suggested giving this complicated question over to a committee to solve. The delegations agreed, and appointed one delegate from each of the eleven states represented in the Convention. Led the Elbridge Gerry, the Committee would spend the next several days debating the fate of state representation in the new government. With that, the Convention adjourned, leaving the delegates a chance to escape debate and celebrate the eleventh anniversary of independence on July 4.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

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Reality television and the Constitutional Convention have more in common than you might think. We know from scanning primetime that every good reality show has at least one unruly character. But could this also be true during one of our Nation’s most formative narratives?

Meet Luther Martin, one of Maryland’s delegates who unabashedly fills the role of your favorite reality TV show’s loud antagonist during the Constitutional Convention.

He was mad. He was mean. He was ornery.

In fact, word around town was that he was even a drunk.

Unlike “Snooki” or the Kardashians, surprisingly, when Martin talks, everyone listened.

After graduating at the top of his class from the College of New Jersey (later Princeton), he moved to Maryland and began studying the law until he was admitted to the Virginia bar in 1771. Martin arrived at the Convention on June 9^th as a staunch supporter of American independence from Great Britain.

From the beginning of the convention, however, Martin made clear his opposition to the creation of a government where the large states would dominate the small states. This, he argued, would lead to unequal representation in Congress. He unswervingly sided with the small states, lending his support to the New Jersey plan and voting against the Virginia Plan.

On June 27^th, he delivered a crotchety criticism of the Virginia Plan’s proposal for proportionate representation in both houses of the legislature. Martin supported the case for equal numbers of delegates in at least one house of government. This would ensure that small states could maintain their integrity regardless of how many more citizens’ one state had over another. He made this known during his tenure on the committee formed to seek a compromise on representation.

Many of his fellow delegates viewed Martin as trying to obstruct the proceedings of the Convention. In many ways, they were right. He often spouted-off uncomfortable sentiments that made everyone uneasy and concerned the Convention would be completely derailed. Jealous of federal power, Martin clung to tradition and fought his hardest to maintain the Articles of Confederation.

Convinced that the new government would have too much power over state governments, Martin and another Maryland delegate, John Francis Mercer, walked out of the convention decrying the demise of individual rights. Later that year, Martin gave a speech to the Maryland House of Delegates where he beset the Convention for straying from their clear instruction to meet “for the sole and express purpose of revising” the Articles of Confederation.

Martin personally believed this was essentially launching a coup d’état and, though George Washington and Benjamin Franklin were supporters of the new system of government, said we should not, “suffer our eyes to be so far dazzled by the splendor of names, as to run blindfolded into what may be our destruction.”

There may not have been any punches thrown or shouting matches caught on camera, but there was definitely drama during the Convention. Battles of will, strong-headedness, and major disagreements – one which even led to people walking out – epitomized Martin’s role during the Convention.

As we look back on these historical events from modernity, we must remember that Martin was indeed a delegate fighting relentlessly for the welfare of the country (not just particular states) and not a reality television star bickering about their plans for Friday night.

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For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.