Thursday, October 10, 2013

On Principle and Pragmatism Id - U.S. Constitutional Convention - May 25 - 31, 1787


The first days of the Constitutional Convention were taken up with administrative actions but them immediately got down to business.  Before the end of May 1787, decisions in the Committee of the Whole had been made on the fact their would be three branches of the gov't and two branches of the legislature.  Votes were taken on how the House was to be elected but debate on the Senate was inconclusive.

This article is a replant from my work on Hubpages who has a problem with my extensive use of quotes from our Founding Fathers as reported by Madison. The insight one can pick up from James Madison's journal is absolutely amazing, please enjoy.

FRIDAY - MAY 25, 1787

ON THIS DAY A QUORUM was reached with the following states being present: Delaware, Georgia, Massachusetts, New Jersey, New York, North Carolina, Pennsylvania, South Carolina,and Virginia.. Still missing were Connecticut, Maryland, New Hampshire, and Rhode Island (who refused to attend).
The first order of business was to elect the President of the Convention. Mr. Roger Morris (PA) nominated George Washington (VA)John Rutlidge (SC) seconded the motion; of course the vote was unanimous. The next order was to select a Convention Secretary, Maj William Jackson was chosen for this rather important position; you will find his name at the bottom of the Constitution attesting to the other signers.
The last business of the day was to form a committee to write the Conventions standing rules and orders. Col Alexander Hamilton (NY), George Wythe (VA), and Charles Pickney (SC) were selected as members.

MONDAY - MAY 28, 1787

TODAY, DELEGATES FROM Connecticut and Maryland took their seats.
One of the rules from the committee established the previous Friday required that, if requested by any delegate, the names of "yeas and nays" would be entered into the Convention's minutes. This was challenged by Mr. Rufus King (PA) noting that it would be counterproductive to having the members speak and vote freely without being held to preliminary views. Col. George Mason (VA) seconded the motion and it carried; an indication of the secrecy of the proceedings that was going to be ironclad.
The rest of the day was spent discussing the rest of the rules, and when finished, they adjourned for the day.

TUESDAY, MAY 29, 1787

IT WAS ON THIS DAY that the real work on the Constitution began and by the end of the day, two plans had been presented for the formation of the new constitution, one submitted by Mr. Charles Pinckney (SC) presented to the assembly at the end of the proceedings and properly called the "Pinckney Plan", and another, in the form of a series of resolusions by Mr. Edmund Randolph (VA), which was called the "Virginia Plan". This plan originated with James Madison (VA), but nevertheless had several authors. But first, a few more administrative matters needed to be completed, mainly dealing with the secrecy of the proceedings.
Then Mr. Edmund Randolph opened up discussions on modifying the Articles of Confederation with a recitation of why they were all there. From Madison's Journal:
"He [Randolph] then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the American downfall. He observed that in revising the federal system we ought to inquire
1. into the properties, which such a government ought to possess,
2. the defects of the confederation,
3. the danger of our situation,
4. the remedy."
Randolph began by noting that purpose of this new government they were about to create was to secure:
  1. "to be paramount to the state constitutions
  2. against foreign invasion,
  3. to procure to the several States, various blessings, of which an isolated situation was incapable.
  4. to be able to defend itself against encroachment &
  5. against dissension between members of the Union, or sedition's in particular states."
He then went on to speak about the various defects of the current confederation, leading to why it needed to be changed. Randolph started with why the confederation was in its current form by noting that, "when the inefficiency of requisitions was unknown -- no commercial discord had arisen among any states -- no rebellion had appeared as in [Massachusetts]. -- foreign debts had not become urgent -- the havoc of paper money had not been foreseen -- treaties had not been violated -- and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty."
The particular defects were:
  1. because Congress was not permitted to prevent nor support war on their own authority, the confederation could not protect against foreign invasion
  2. further, that the individual states have the ability to prove a foreign conflict for all
  3. that Congress had no authority to "cause infractions of treaties or of the law of nations to be punished"
  4. that Congress could not federalize the State militias in time of emergency
  5. that Congress had no authority to raise money, without consent of the States, to conduct any of its affairs.
  6. "that the fœderal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power nor means to interpose accordingly to the exigency."
  7. that the advantages to the U.S. which might accrue under a federation are unattainable under a confederation.
  8. "that the fœderal government could not defend itself against encroachments from the states."
  9. "that it was not even paramount to the state constitutions, ratified as it was in many of the states."
  10. 'He', [Randolph]. 'next reviewed the danger of our situation, appealed to the sense of the best friends of the U. S. the prospect of anarchy from the laxity of government every where; and to other considerations.'
At this point E. Randolph (VA) began entering his resolutions, which, for obvious reasons, I will paraphrase many of them:
  1. "Resolved that the articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, 'common defence, security of liberty, and general welfare.'"
  2. Resolved that the National Legislature will be related to either "the Quotas of contribution, or to the number of free inhabitants", whichever one seems more appropriate.
  3. Resolved "that the National Legislature ought to consist of two branches."
  4. Resolved that the people of each State should elect "the members of the first branch of the National Legislature" for a term of __ years; "to be of the age of ___ years at least", to receive just compensation; that a member may not hold any office that a given State might establish or the United States, "except those peculiarly belong to the functions of the first branch, during the term of service, and. for the space of ___ after its expiration"; that they may not be re-elected to that same office for the "space of ___ after the expiration of their term of service, and to be subject to recall."
  5. Resolved that the first branch should elect the second branch from "persons nominated by the individual Legislatures, to be of the age of ___ years at least; to hold their offices for a term sufficient to ensure their independency"; to receive just pay; and who's ineligible to any office has the same restrictions as the first branch.
  6. Resolved "that each branch ought to possess the right of originating Acts; that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union against. any member of the Union failing to fulfil its duty under the articles thereof."
  7. 7. Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of — years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.
  8. Resolved that a Council of revision, composed of the Executive and __ number of the National Judiciary, be established and given "authority to examine every act of the National Legislature before it shall operate, and every act of a particular Legislature before a Negative thereon shall be final" and considered a rejection "unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by — of the members of each branch."
  9. Resolved "that a National Judiciary be established to consist of one or more supreme" courts, and such "inferior tribunals to be chosen by the National Legislature", to hold their offices for and to receive just compensation. "That the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all Piracies & felonies on the high seas, captures from an enemy: cases in which foreigners or Citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any national officers, and questions which may involve the national peace and harmony."
  10. Resolved that provision ought to be made to admit new States ... "with the consent of a number of voices in the National Legislature less than the whole."
  11. Resolved "that a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guarantied by the United States to each State."
  12. Resolved "that provision ought to be made for the" the Continental Congress to continue its duties "until a given day after the reform of the articles of Union shall be adopted ..."\
  13. "Resolved that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto."
  14. "Resolved that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union."
  15. Resolved that the amendments which shall be offered to the Confederation, ... after the approbation of [the Continental] Congress to be submitted to an assembly or assemblies of Representatives, ... to be expressly chosen by the people to consider & decide thereon."
He concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the U. S. to pass away unimproved.

Following the end of Randolph's speech, Charles Pinckney (SC), presented his plan, the so-called "Pinckney Plan" to the Convention. He did this in the form of a letter which laid out his ideas. While it is said this plan was rejected by the Committee of the Whole, you will quickly see, that isn't entirely true; Pinckney's plan contains the following provisions:
  1. The Government "shall consist of supreme legislative Executive & judicial Powers."
  2. "The Legislative Power shall be vested in a Congress to consist of two separate Houses" 1) the first will "be called the House of Delegates", 2) the second called "the Senate", and 3) who shall meet on the __ Day of __ in every year."
  3. The people of the several States shall choose, every __ years, "members of the House of Delegates", whose qualifications will be the same as those of the State legislatures from which they are elected; "each member shall have been a citizen of the United States for __ years"; each member "shall be of __ years of age"; each member shall be "a resident in the State he is chosen for __. "Until a census of the people shall be taken in the manner herein after mentioned, the House of Delegates shall consist of __ to be chosen from the different States in the following proportions:" [here Pinckney lists each State]; thereafter, the Legislature shall regulate the number of delegates by the number of inhabitants according to ... the rate of one for every __ thousand." Money bills ... shall originate in the house of Delegates", the Senate may not alter them. Only the House of Delegates may impeachment and shall choose it’s own officers. Vacancies shall be supplied by the executive authority of the State they represent.
  4. "The Senate shall be elected & chosen by the House of Delegates which House immediately after their meeting shall choose by ballot " — [Pinckney then lists each State with the number of Senators from each to be chosen by ballot left blank] The Senators chosen from NH, MA, RI, and CT, shall form one classThose from NY, NY, PA, and DE form a second, while those from MD, VA, NC, SC and GA form a third class. "The House of Delegates shall number these Classes one two and three" in order to "fix the times of their service by Lot" [Pinckney then provides for a place to list how long each class shall serve]; "as their times of service expire, the House of Delegates shall fill them up by elections for __ years" and then provides for vacencies from death or resignation. "Each Senator shall be — years of age at least—shall have been a Citizen of the United States 4 years before his election & shall be a resident of the State he is chosen from. The Senate shall choose its own Officers."
  5. The time and manner for holding elections will be determined by each State and the judges of the elections shall be the the House of Delegates. /Each House needs a majority to establish a Quarum; /"Freedom of Speech & Debate in the legislature shall not be impeached or Questioned in any place out of it and the Members of both Houses shall in all cases, except for Treason Felony or Breach of the Peace, be free from arrest during their attendance at Congress and in going to and returning from it."; /the Houses shall keep journals ... and neither house, without the consent of the other, shall adjourn for more than __ days ..."; /for one year after or while elected, "members of each house shall not be eligible ... of holding any office under the Union"; /each member will receive just compensation. /Bills passed by the Legislature will go to the President for signature. /If the President disapproves, the bill will be sent back to the orginating House. /If 2/3 of that House still approves of the bill, it will be sent to the other House. /If 2/3 of that House approve, the bill becomes Law. /All "bills sent to the President & not returned by him within __ days shall be laws unless the Legislature by their adjournment prevent their return in which case they shall not be laws."
  6. 1) "The Legislature of the United States shall have the power to lay & collect Taxes Duties Imposts & excises" ... [includes such Powers listed in Ariticle 1, Section 8 of the US Constitution such as a) "borrowing money", b) "establishing Post Offices and Roads", c) "raises armies and navies", d) "coin money", e) "regulate interstate Commerce", f) "control Naturalization", g) "create the lower National Courts", h) "To declare the law & Punishment of piracies & felonies at sea & of counterfeiting Coin & of all offences against the Laws of Nations", i) "to organize the Militia of the United States", j) "to provide infrastructure for the U.S. military", k) "to establish a seat of government", l) "to federalize the State militias to enforce treaties, surppress insurrections, and repel invasions", m) "No Tax shall be laid on articles exported from the States—nor capitation tax but in proportion to the Census before directed", n) "cannot grant Titles of Nobility", and finally the big one, o) "And to make all laws for carrying the foregoing into execution." (that would include what is to follow.. ---------------- 2) in addition to or substantially different from what you will find in Article 1 are fhe following: a) "To subdue a rebellion in any State on application of its legislature", b) "To appoint a Treasurer by ballot", c) "To ... provide for a national University ... ", d) "To make rules concerning Captures from an Enemy", e) "The Legislature of the United States shall have the Power to declare the Punishment of Treason which shall consist only in levying War against the United States or any of them or in adhering to their Enemies. No person shall be convicted of Treason but by the testimony of two witnesses." [this made it into Article III], f) "The proportion of direct taxation shall be regulated by the whole number of inhabitants of every description which number shall within — years after the first meeting of the Legislature & within the term of every — year after be taken in the manner to be prescribed by the legislature", g) "All Laws regulating Commerce shall require the assent of two thirds of the members present in each house— ... — [or] ... shall pass no Law on the subject of Religion, nor touching or abridging the Liberty of the Press nor shall the privilege of the writ of Habeas Corpus ever be suspended except in case of Rebellion or Invasion., and lastly h) "All acts made by the Legislature ... shall be the supreme Law of the land & all Judges shall be bound to consider them as such in their decisions."
7 "The Senate shall have the sole & exclusive power to declare War & to make treaties & to appoint Ambassadors & other Ministers to foreign nations & Judges of the Supreme Court.; They shall have the exclusive power to regulate the manner of deciding all disputes & controversies now subsisting or which may arise between the States respecting Jurisdiction or Territory."
8 "The Executive Power ... shall be vested in a President ... which shall be his style & his title shall be His Excellency. He shall be elected for __ years & shall be reeligible. He shall ... give information to the Legislature of the state of the Union & recommend ... measures he may think necessary—he shall a) execute all laws, b) commission all military officers; all ministers, execpt for Ambassadors, and for Judges of the Supreme Court he shall nominate, and with the consent of the Senate, appoint all other officers of the United States. c) He may conduct business with foreign nations and d) have power to grant pardons & reprieves except in impeachments. e) He shall be Commander in chief of the army & navy of the United States & of the Militia of the several States; f) he shall receive just compensation. g) Upon entering his Duties, he will take an oath, and 8) he may be removed from office by "impeachment by the house of Delegates & Conviction in the Supreme Court of Treason bribery or Corruption". h) The order of succession shall be the President of the Senate and then the Speaker of the House of Delegates.
9 "The Legislature ... shall have the Power ... to establish ... Courts of Law Equity & Admiralty [as well as the Supreme Court] ...—The Judges of the Courts shall hold their offices" for life and be paid a just compensation—The Supreme Court's jurisdiction shall [and the rest reads like Article III]. :All criminal offences (except in cases of impeachment) shall be tried in the State where they shall be committed—the trials shall be open & public & shall be by Jury."
10 "Immediately after the first census of the people of the United States the House of Delegates shall apportion the Senate by electing for each State out of the citizens resident therein one Senator for every __ members each State shall have in the House of Delegates—Each State shall be entitled to have at least one member in the Senate."
11 No State shall conduct foreign affairs or grant letters of marque & reprisal or enter into treaty or alliance or confederation with any other State of foreign nation. "—& to render these prohibitions effectual the Legislature of the United States shall have the power to revise the laws of the several States that may be supposed to infringe the Powers exclusively delegated by this Constitution to Congress & to negative & annual such as do."
12 Provisions were made for the laws of one State being applicable in every other State, ect.
13 "Full faith shall be given in each State to the acts of the Legislature & to the records & judicial Proceedings of the Courts & magistrates of every State."
14 Provides for the admission of new States
The Legislature shall have power to admit new States into the Union on the same terms with the original States provided two thirds of the members present in both Houses agree.
15 "On the application of the legislature of a State the United States shall protect it against domestic insurrection."
16 Provides for amending the Constitution with 2/3 of States and each house. "The Ratification of the conventions of — States shall be sufficient for organizing this Constitution."
It seems to me that within the first few days of the start of Convention, that between the Virginia and Randolph plans, the final form of the U.S. Constitution had been effectively outlined . With that, the session was adjourned for the day.
I hope to the reader can see how much of the original Virginia Plan made it into the eventual Constitution. Such was the vision of James Madison (VA) (and apparently Charles Pinckney (SC)) and his (their) synthesis of those brilliant minds who contributed to the body of political theory such as John Locke, Benjamin Franklin, John Adams, an(d Thomas Jefferson who based many of their ideas on those attempts at democracies from the ancient Athenian and Roman governments.



AND THAT WAS THE BEGINNING OF a very arduous and contentious process of creation, probably more painful than actual birth. Today began the debate on the actual structure of the most unique experiment in social and political science the world has ever known!
Delegates were still filtering in; Roger Sherman (CT) took his seat today after two other delegates wandered in the day before. Once Mr. Sherman was seated, the assembly formed themselves as a Committee of the Whole in order to debate the resolutions presented by Mr.Edmund Randolph (VA) the previous day. Without preamble, they began from the top by considering the first resolution, "that the articles of Confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty & general welfare."
Immediately, Mr. G. Morris (PA) moved to postpone consideration of this resolution in order to consider the following three propositions:
  1. "that a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & genl. welfare."
  2. that no contract (such as the one establishing the current confederation) between sovereign States would ever be sufficient
  3. that the government to be established should consist of a Judiciary, Executive, and Legislative.
The motion was approved.
Soon, some criticisms were raised about the first proposition and it was agreed to begin with the last proposition to which Mr. Charles Pinckney (SC) asked "whether he [Randolph] meant to abolish the State Governts. altogether?Randolph (VA) responded that "that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view." This initial exchange between Charles Pinckney and Randolph has been repeated in various ways for the next 226 years!
What elicited this comment were the words national and supreme. Both Charles Pinckney and Eldridge Gerry (MA) wondered whether the Convention had the power to "authorize a discussion of a system founded on different principles from the federal Constitution". In rebuttal, Gov Morris, George Mason (VA), and Roger Sherman (CT) made the following points:
  1. "the distinction between a federal and nationalsupreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation. He [Morris] contended that in all Communities there must be one supreme power, and one only".
  2. [George Mason (VA)] "that the present confederation was not only deficient in not providing for coercion & punishment agst. delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it.", and
  3. that "the Confederation had not given sufficient power to Congs. and that additional powers were necessary; particularly that of raising money which he [Sherman] said would involve many other powers. He admitted also that the General & particular jurisdictions ought in no case to be concurrent.
Nevertheless, Roger Sherman (CT) also seemed not to be of a mind to make too many inroads on the existing system; intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the States. (It should be noted that George Mason (VA) went on to become one of the major opponents to the ratification of the Constitution as he believed it gave the central gov't too much power.) Thus went the reasoning over this critical element of how our government was to be constituted, and argument, as I said, that continues today.
The third proposition from Randolph (VA) to establish a supreme national gov't consisting of legislative, executive, and judicial branches passed that day, May 30, 1787, CT being against; MA, VA, SC, NC, and PA being for; while NY was split with Alexander Hamilton (NY) being an aye and Robert Yates (NY) (who later left the Convention and joined the opposition against the Constitution) being a nay.
IT WAS DECIDED the next order of business was to take up Randolph's second resolution, to wit: ".— that the rights of suffrage in the National Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.”; there was immediate disagreement.
  • James Madison (VA) wondered - "that the words, “or to thenumber of free inhabitants,” might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed, moved that they might be struck out."
  • Rufus King (MA) observed that the quotas of contribution which would alone remain as the measure of representation, would not answer, because waving every other view of the matter, the revenue might hereafter be so collected by the General Govt. that the sums respectively drawn from the States would not appear, and would besides be continually varying.
  • Col. Hamilton (NY) moved to alter the resolution so as to read “that the rights of suffrage in the national Legislature ought to be proportioned to the number of free inhabitants.”
  • "Mr. Randolph and Mr. Madison then moved the following resolution—that the rights of suffrage in the national Legislature ought to be proportioned.”, which was amended to say “that the rights of suffrage in the national Legislature ought to be proportioned and not according to the present system”—
However, it came to pass that none of these resolutions were, at the time, satisfactory and were postponed. In the course of the debate, it was again noted the Delaware delegates were duty bound not to vote on any move that would change the current apportionment of votes contained in the Articles of Confederation. Some felt this is a severe impediment; James Madison did not. He argued thusly,
" ... that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a National Governmt. should be put into the place. In the former case, the acts of Congs. depended so much for their efficacy on the cooperation of the States, that these had a weight both within & without Congress, nearly in proportion to their extent and importance. In the latter case, as the acts of the Genl Govt. would take effect without the intervention of the State legislatures, a vote from a small State wd. have the same efficacy & importance as a vote from a large one, and there was the same reason for different numbers of representatives from different States, as from Counties of different extents within particular States. He suggested as an expedient for at once taking the sense of the members on this point and saving the Delaware deputies from embarrassment, that the question should be taken in Committee, and the clause on report to the House, be postponed without a question there."
This was still not quite the last of it, but eventually, the question was postponed and sent to committee. The meeting was adjourned for the day.

THURSDAY, MAY 31, 1787 

THIS DAY, THE COMMITTEE OF THE WHOLE finally agreed on something, Randolph's third resolution - "that the National Legislature ought to consist of two branches.", although not without a small fight from Pennsylvania on behest of Benjamin Franklin, who favored a unicameral legislature. Beyond this objection, there was no debate and the resolution passed the committee.
The next resolution, the fourth, did not have the same happy fate. The first clause of this resolution called for "the members of the first branch [the House of Representatives] of the National Legislature ought to be elected by the people of the several States".
"Elected by the People", something you and I take for granted; many of us, I suspect, would assume this was a no-brainer for the delegates at the Constitutional Convention. Well, it wasn't, not by a long-shot. You see, in those days, citizens were classified into a hierarchy, not one of nobility, but one of economic status. On top were the aristocrats (white, of course), most, if not all of the delegates to the Convention fell into this class. Next came your landed white males followed by male merchants. All of these people were considered to have, as I believe Jefferson said, "skin-in-the-game"; they had a vested interest in the outcome. Following these classes, bringing up the rear, were laborers, free blacks, women, and slaves, probably in that order.
In the quotes to follow, keep in mind, the "people" being referred to are only those who have "skin-in-the-game". Such was the mind-set in the 1700s. Here was what the thinking was of the various delegates at the Convention to this extremely important question - who should elect the House of Representatives?
  • Roger Sherman (CT) begins by having "opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled." [Further, they had no vested interest in the outcome]
  • Elbridge Gerry (MA) next says "The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In MA. it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of Government. It would seem to be a maxim of democracy to starve the public servants. [Madison] He mentioned the popular clamour in MA. for the reduction of salaries and the attack made on that of the Government. though secured by the spirit of the Constitution itself. He had he said been [Gerry] too republican heretofore: he was still however republican, but had been taught by experience the danger of the levelling spirit."
  • "Pierce Butler (SC) thought an election by the people an impracticable mode."
In response:
  • "George Mason (VA) argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Government. It was, so to speak, to be our House of Commons—It ought to know and sympathize with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in VA., different interests and views arising from difference of produce, of habits, etc, etc. He admitted that we had been too democratic but was afraid we said. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity and policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens."
  • "James Wilson (PA) contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governments. should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceeded much more from the officers of the States, than from the people at large."
  • "James Madison (VA) considered the popular election of one branch of the national Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first—the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive & judiciary branches of the Government. He thought too that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures."
  • "James Wilson (PA) opposed both a nomination by the State Legislatures, and an election by the first branch of the national Legislature, because the second branch of the latter, ought to be independent of both. He thought both branches of the National Legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of chusing the Senate of NY to wit of uniting several election districts for one branch, in chusing members for the other branch, as a good model."
  • "James Madison (VA) observed that such a mode would destroy the influence of the smaller States associated with larger ones in the same district; as the latter would chuse from within themselves, altho’ better men might be found in the former. The election of Senators in VA. where large and small counties were often formed into one district for the purpose, had illustrated this consequence. Local partiality, would often prefer a resident within the County or State, to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own State."
  • "Roger Sherman (CT) favored an election of one member by each of the State Legislatures while Charles Pinkney (SC) moved to strike out the “nomination by the State Legislatures;” on this question."
After more debate along the same lines, a vote was taken with the following results: 6 Ayes, (MA, NY, PA, VA, GA, and NC); 2 Nays, (NJ and SC); and 2 divided, (CT and DE) - the first clause of the 4th resolution passed.
As to the remainder of the 4th resolution regarding the qualifications of the representatives, they were passed without debate.
THE NEXT RESOLUTION considered was number 5; “that the second, (or senatorial) branch of the National Legislature ought to be chosen by the first branch out of persons nominated by the State Legislatures.”
  • "Richard Spaight (NC) contended that the 2nd. branch ought to be chosen by the State Legislatures and moved an amendment to that effect, while,"
  • "Pierce Butler (SC) apprehended that the taking so many powers out of the hands of the States as was proposed, tended to destroy all that balance and security of interests among the States which it was necessary to preserve; and called on Edmund Randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch."
  • George Rand (DE), on the other hand, "observed that he had at the time of offering his propositions stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U.S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for against. this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose"
In Mr. Rand's thoughts lie one of the first considerations of the need for "checks and balances" in government. Further, he substantiates the distrust most delegates had of a democratic process where democratic meant the majority rules.
[ASIDE - I think most readers also remember from high school or college that the construction of the Senate was one of the more contentious and problematic issues the Convention faced. We all know the outcome but few of us know the reasoning or arguments pro and con behind the decisions that were finally made. In presenting such material, I hope one comes to a much better understanding of why the government operates the way it does, I know I do.] The debate continued -
  • "Rufus King (MA) reminded the Committee that the choice of the second branch as proposed (by Mr. Spaight) viz. by the State Legislatures would be impracticable, unless it was to be very numerous, or the idea of proportion among the States was to be disregarded. According to this idea, there must be 80 or 100 members to entitle Delaware to the choice of one of them.—Mr. Spaight withdrew his motion."
The results of the vote were: 0 Ayes, 9 Nays (MA, CT, NY, NJ, PA, VA, NC, SC, GA); 1 Divided, (DE) and the move to strike failed. Then the question to use "electing by the first branch out of nominations by the State Legislatures" was put to a vote. It to failed by a vote of 3 Ayes, (MA, VA, and SC) and 7 Nays, (CT, NY, NJ, PA, DE, NC, GA)
Consequently, resolution 5 was left in limbo.
This was going to be a busy day, for the Committee took up resolution 6 from Edmund Randolph's (VA) proposal for a new government;
" [5] to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union[1] Resolved that each branch ought to possess the right of originating Acts; [3] moreover to legislate in all cases to which the separate States are incompetent, [2] that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation or [4] in which the harmony of the United States may be interrupted by the exercise of individual Legislation; [6] and to call forth the force of the Union agst. any member of the Union failing to fulfil its duty under the articles thereof."
The first clause was adopted unanimously as was the second clause. The third clause presented more of a problem due to the word "incompetent".

Charles Pinkney (SC) and John Rutledge (SC) were worried about the vagueness of the term and wanted an enumeration of the "incompetence's". Pierce Butler (SC) asserted the Convention was taking too many powers away from the States and wondered if this was Edmund Randolph's (VA) intent. Randolph said it was not and that he was opposed to giving "indefinite" powers to the central legislature. James Madison (VA) also registered the same fears of going overboard in eroding State jurisdictions but understood the need to do something. After some debate, the vote was taken on this clause with the results being 9 Ayes, (MA, NY, VA, GA, SC, NC, DE, NJ, and PA); and one Divided, (CT).

Clauses 4 and 5 passed without debate. Clause 6, however, raised serious concerns regarding the use of federal force against one of the States, especially for James Madison. He moved this clause be postponed and it was accepted.

The Committee adjourned.


THE FIRST FOUR DAYS, MAY 25 - 28. 1787, of this historic attempt to craft a workable, enduring, flexible government designed to be approved by the infant nation's citizens in order to serve these same citizens was devoted to the mundane tasks of organizing the convention. What made this attempt unique is that while the Aritcles of Confederation was a contract between States to work together as a united States while maintaining all authority withing the State Legislatures and giving none to the central "committee" (the Continental Congress) to deal with common or national issues, this new Constitution was going to be a contract between the People of the United States and the Central government; that contract would be the Constitution of the United States which would be ratified by the citizens of each State via special Constitutional Conventions.
ON DAY FIVE, MAY 29, 1787, two plans for a future constitution were offered; the Virginia Plan, by Edmund Randolph (VA) and the Pinckney Plan, by Charles Pinckey (SC). Madison, in his journal, indicates the Pinckey Plan was essentially ignored by the Committee, but, I wonder about that. For, in reading his draft, many of the ideas, some word-for-word, appear in the final version of the U.S. Constitution.
In any case, in taking up the Virginia Plan, the problems that have long plagued a nation trying to come together in a permanent bond, but made up of peoples who developed along different paths, began to emerge. Madison, in the Federalist Papers referred to this as "factionalism". Factionalism is natural and unavoidable. Because of this, most of those who were gathered together understood factionalism couldn't be eliminated, just controlled ... hopefully. The trick was to figure out how to do it, and each delegate, of course, had his own idea.
For example, GEORGE RAND (DE) brought up the idea of "checks and balances". There was much debate about how far removed the House should be from the citizens. Further, the relationship between the central government and the state governments in this new federation came under close and fierce scrutiny with most of the propositions and/or resolutions regarding this issue being postponed for further discussion. In the end, this question was never explicitly resolved and was left for future generations to answer.
DAY SIX and SEVEN, MAY 30 - 31, 1787, BROUGHT FORTH DEBATE over the actual structure this new federal government was going to take. May 30th began with a debate about a subject we still arguing today, 306 years later, the relationship between the Federal and State governments; with Charles Pinckney (SC) asking "whether he [Edmund Randolph (VA)] meant to abolish the State Governts. altogether?"; the answer was "no", but nevertheless the result was the Supremacy Clause in the Constitution asserting that in matters determined to be in the purview of the Federal government, the Federal government reigns supreme. During the debate, consideration was given, not for the first time and certainly not for the last, on whether the wording could get passed by the people of the States. In any case, the first agreement was that the new government would expand the current single Legislature, into a supreme National government consisting of three branches, an Executive, Legislative, and a Judicial.
The next topic taken up was the apportionment of legislatures to represent the States; a very tough nut indeed. Much debate ensued over the meaning of suffrage, apportionment, and "free inhabitants". Ultimately, nothing was resolved and the issue was postponed; which ended the day. The beginning of the 31st started with an agreement that the legislature consist of two branches. Things went downhill from there when they tried to decide how the representatives of the first branch (the House) were to be elected.
Some proposed "by the People", that brought a gasp from some of the assembly. Unlike today, when this seems like a no-brainer, it wasn't then. Even though these esteemed founders were liberals, they still grew up in a conservative world who believed in a social hierarchy where certain groups of people (monied and propertied) had more rights than others (women and slaves). The belief of the day was that only those with, as Jefferson put it, skin-in-the-game, had a right to participate in the political process. Nevertheless, when all was said and done, the House would be elected by the People, at least those with skin-in-the-game.
No such luck for the second branch, the Senate; after much debate and a couple of inconclusive votes, debate was postponed. After this, the following resolutions were passed this last day of May:
  • Resolved that each branch ought to possess the right of originating Acts;
  • to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union
  • moreover to legislate in all cases to which the separate States are incompetent,
  • that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation or in which the harmony of the United States may be interrupted by the exercise of individual Legislation;
The following clause was postponed
  • and to call forth the force of the Union agst. any member of the Union failing to fulfil its duty under the articles thereof."
.With that, we move into June 1787

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