Philadelphia, September 10 – 15, 1787

As the weather finally cools a bit and the Convention enters what will be the final week of deliberations, the main topics of discussion are the amendment process and the ratification process.  On Monday, September 10, Elbridge Gerry raises a concern about the amendment process—he fears that the new constitution could be amended to “subvert the State Constitutions altogether.” James Madison’s response increases the voice of the states by requiring ratification of a constitutional amendment by three-fourths of the state legislatures or conventions in three-fourths of the states.  John Rutledge of South Carolina is concerned that states opposing slavery could use the amendment process to reduce the institution’s protections.  Therefore, the delegates add this clause to the amendment process: “Provided that no amendments which may be made prior to the year 1808, shall in any manner affect” the passages related to slavery.

The conversation turns to the ratification process for the new constitution.  In order to establish the new national government, do they need the approval of Congress?  Do they need all thirteen states to sign on?  Will nine states be enough?  Gerry is concerned that it is improper to change the government without the approval of the Confederation Congress.  After all, the Convention holds its authority from Congress.  Edmund Randolph of Virginia believes that an even more involved process is necessary for the new constitution to take effect.  While he knows the delegates will probably vote down his proposal, he thinks the new government should only take effect after a three-step process: 1. Submit the draft constitution to Congress for its approval. 2. State conventions should be able to submit amendments to the draft constitution.   3. The 1787 draft constitution, along with the state-suggested amendments, should be submitted to a second general convention, which would then develop the final Constitution.  Gerry agrees with Randolph’s plan.  Madison’s notes record: “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.”  Randolph is correct—his call for a second constitutional convention, although it wins the support of both Mason and Gerry, is rejected.  James Wilson of Pennsylvania believes that making the assent of Congress, or requiring all 13 states to ratify, would be “insuperable obstacles.”  The convention votes not to require Congress’s approval, but that upon ratification of any 9 states, the Constitution will take effect.

On Wednesday, September 12, the Committee of Style presents the plan, reading it aloud by paragraphs, and orders that printed copies of this almost-final draft be provided to the delegates.  Accompanying the draft will be a letter from the President of the Convention, George Washington, to the President of the Congress, Arthur St. Clair of Pennsylvania.  Excerpts of this letter are shown below:

Sir,

We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable.

The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union…

It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: individuals entering into society, must give up a share of liberty to preserve the rest.  The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.  It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular interests.

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence…

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

Philadelphia—The delegates, having now tackled topics as challenging as representation in Congress and several issues related to slavery, are beginning to see a light at the end of the tunnel. But decisions remain related to the separation of powers between the three national branches, as well as to federalism: the assignment of powers between the national government and the state governments.

Enumerated Powers of the National Government

Days were devoted to discussing and finalizing the types of powers, and the specific powers themselves, which would be enumerated, or listed. Guiding the delegates was the understanding that the national government would be one of limited powers—if a power was not given to the national government, it would be assumed not to have it. The Congress would be empowered to make rules for commerce among the states, and, for the purpose of discharging the national debt, be able to “collect taxes, duties, imposts, and excises.” The great writ, or habeas corpus, could not be suspended “unless where in cases of Rebellion or invasion the public safety may require it.”

The delegates discuss the establishment and jurisdiction of the judiciary, with the particular concern of keeping the judiciary independent of the other branches. A motion to empower the executive to remove justices on request of the legislature was soundly defeated (7-1).

Another important topic is the division of war powers. Unlike a king, whose power is marked by the ability to go to war on a whim, the President of the United States would be unable to declare war – that power was given to Congress. The President would be commander in chief of the military when it was called into service by the United States.

A Nationalist’s Last Gasp

A constitutional supremacy clause—holding that the Constitution is the supreme law of the land—had been decided several days earlier.  Consequently, state laws would give way to federal laws made in pursuance of the national constitution.  Consistent with this reasoning, James Madison, supported by James Wilson and Charles Pinckney, makes another attempt to give Congress a veto power over state laws.

Many delegates, including George Mason and John Rutledge, objected, asking: would states have to submit all their laws to the general government for approval? Would the general government be empowered to repeal state laws outright? Rutledge pronounced that no state would “ever agree to be bound hand & foot in this manner.” The proposal was narrowly defeated (6-5), along with Madison’s last gasp for a more supreme national government.

State Matters

The delegates dealt with issues related to states: their powers, their relationship to each other, as well as procedures for new states. As part of a union, the states would have obligations to each other: they would be bound to recognize the laws and proceedings of other states. A fugitive slave clause was added, requiring even free states to deliver runaway slaves to their masters. The national government would also have obligations to states: the guarantee of a republican form of government, protection from invasion, and protection from domestic violence upon a governor’s request.

Ratification

The work of the convention would be meaningless if states did not approve the new Constitution. There was near unanimity (9-1) that the Constitution would only go into effect for the states that actually ratified. After defeating proposals to require 13, and then 10 states to ratify in order for the Constitution to go into effect for those states, the delegates finally settled (8-3) on a magic number of nine states. The Confederation Congress would not have to approve the new Constitution.

The Leftovers: The Brearly Committee

With this, the Convention has concluded its discussion of the Committee of Detail Report. To deal with those questions still outstanding, a new committee was formed will consisting of one delegate from each state. This group entitled “The Committee on Unfinished Parts,” would become known as the Brearly Committee after its New Jersey representative, and would deal with those issues that had been postponed.  These would include Congress’s power to spend for the general welfare, creation of the Electoral College method of electing the President, and the President’s role in treaty-making and in appointment of officers.

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

Philadelphia -

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.

Philadelphia –

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.