Philadelphia –

As September began, the Convention had made remarkable progress toward drafting a new Constitution, but many questions had been left for later. The delegates agreed “to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State….” The “Brearly Committee,” chaired by David Brearly of New Jersey, reported back its suggestions for how to address difficult issues related to the powers of Congress and the shape of the Executive branch.

One issue that touched on the relationships of the states to one another and to the national Legislature was the full faith and credit clause. The Articles of Confederation had such a clause, though it applied very narrowly to state courts: “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” The Brearly Committee report recommended expanding the scope of this full faith and credit to legislative as well as judicial proceedings, and granting the national Legislature a new power to enforce compliance. Delegates settled on the language we now read in Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The Brearly Committee also made recommendations regarding the powers of Congress over commerce and finance. Congress, it was agreed, could “lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare, of the U. S.” Congress would also be given the power of regulating relations with Indian tribes, of making laws to govern federal lands, and of granting patents to protect the rights of inventors and authors of property in their ideas.

Finally, delegates had already agreed to give Congress – as opposed to the Executive – power to “declare war”. The Brearly Committee’s report led to the granting of two new powers to Congress that minimized the Executive power over war.  First, Congress, and not the Executive, was empowered to grant letters of marque and reprisal, which effectively deputized private vessels to capture vessels suspected of piracy and bring them for trial. Second, Congress was empowered “to raise and support armies” but it was stipulated that “no appropriation of money to that use shall be for a longer term than two years.” These powers, among others, reflected a general wariness among the Convention’s delegates of granting too much power to the Executive branch. This wariness is also apparent in the Convention’s inability to settle on the Chief Executive’s powers, mode of election, and term of office, until very late in the Convention. That debate will be the subject of our next post.

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.