Journal of the Federal Convention June 8th 1787

Large State/Small State Rift. National Legislative Veto of State Laws. National Executive. Proportional Representation in First Branch.

On a reconsideration of the clause giving the Natl. Legislature a negative on such laws of the States as might be contrary to the articles of Union, or Treaties with foreign nations,

Mr. PINKNEY moved "that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper." He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it wd. be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the corner stone of an efficient national Govt.; that under the British Govt. the negative of the Crown had been found beneficial, and the States are more one nation now, than the Colonies were then.

Mr. MADISON seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system. Experience had evinced a constant . A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy wd. lie [FN1] in an appeal to coercion. Was such a remedy eligible? was it practicable? Could the national resources, if exerted to the utmost enforce a national decree agst. Massts. abetted perhaps by several of her neighbours? It wd. not be possible. A small proportion of the Community, in a compact situation, acting on the defensive, and at one of its extremities might at any time bid defiance to the National authority. Any Govt. for the U. States formed on the supposed practicability of using force agst. the unconstitutional proceedings of the States, wd. prove as visionary & fallacious as the Govt. of Congs. The negative wd. render the use of force unnecessary. The States cd. of themselves then [FN2] pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination wd. only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system. This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.

Mr. WILLIAMSON was agst. giving a power that might restrain the States from regulating their internal police.

Mr. GERRY cd. not see the extent of such a power, and was agst. every power that was not necessary. He thought a remonstrance agst. unreasonable acts of the States wd. reclaim [FN3] them If it shd. not force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the confederation was depending before Congress, Massachussetts was then for inserting the power of emitting paper money amg. the exclusive powers of Congress. He observed that the proposed negative wd. extend to the regulations of the Militia, a matter on which the existence of a [FN4] State might depend. The Natl. Legislature with such a power may enslave the States. Such an idea as this will never be acceded to. It has never been suggested or conceived among the people. No speculative projector, and there are eno' of that character among us, in politics as well as in other things, has in any pamphlet or newspaper thrown out the idea. The States too have different interests and are ignorant of each other's interests. The negative therefore will be abused. New States too having separate views from the old States will never come into the Union. They may even be under some foreign influence; are they in such case to participate in the negative on the will of the other States?

Mr. SHERMAN thought the cases in which the negative ought to be exercised, might be defined. He wished the point might not be decided till a trial at least shd. be made for that purpose.

Mr. WILSON would not say what modifications of the proposed power might be practicable or expedient. But however novel it might appear the principle of it when viewed with a close & steady eye, is right. There is no instance in which the laws say that the individual shd. be bound in one case, & at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual person may happen as well as over the individual States. Federal liberty is to [FN5] States, what civil liberty, is to private individuals. And States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, that [FN6] the savage is to purchase civil liberty by the surrender of his [FN7] personal sovereignty, which he enjoys in a State of nature. A definition of the cases in which the Negative should be exercised, is impracticable. A discretion must be left on one side or the other? will it not be most safely lodged on the side of the Natl. Govt.? Among the first sentiments expressed in the first Congs. one was that Virga. is no more, that Masts. is no [FN8], that Pa. is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Govts. formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?

Mr. DICKENSON deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the Natl. Govt. or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible.

Mr. BEDFORD. In answer to his colleague's question where wd. be the danger to the States from this power, would refer him to the smallness of his own State which may be injured at pleasure without redress. It was meant he found to strip the small States of their equal right of suffrage. In this case Delaware would have about 1/90 for its share in the General Councils, whilst Pa. & Va. would posses 1/3 of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle of representation. And after all, if a State does not obey the law of the new System, must not force be resorted to as the only ultimate remedy, in this as in any other system. It seems as if Pa. & Va. by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. Besides, How can it be thought that the proposed negative can be exercised? are the laws of the States to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberations [FN9] of a body who may be incapable of Judging of them? Is the National Legislature too to sit continually in order to revise the laws of the States?

Mr. MADISON observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Natl. Govt. into each State so far as to give a temporary assent at least. This was the practice in Royal Colonies before the Revolution and would not have been inconvenient, if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly. -He asked Mr. B. what would be the consequence to the small States of a dissolution of the Union wch. seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Genl. Govt. was withdrawn.

Mr. BUTLER was vehement agst. the Negative in the proposed extent, as cutting off all hope of equal justice to the distant States. The people there would not he was sure give it a hearing.

On the question for extending the negative power to all cases as proposd. by [Mr. P. & Mr. M-] Mass. ay. Cont. no. N. Y. no. N. J. no. Pa. ay. Del. divd. Mr. Read & Mr. Dickenson ay. Mr. Bedford & Mr. Basset no. Maryd. no. Va. ay. Mr. R. Mr. Mason no. Mr. Blair, Docr. Mc. g. Mr. M. ay. Genl. W. not consulted. N. C. no. S. C. no. Geo. no. [FN10]

On motion of Mr. GERRY and Mr. KING tomorrow was assigned for reconsidering the mode of appointing the National Executive: the reconsideration being voted for by all the States except Connecticut & N. Carolina.

Mr. PINKNEY and Mr. RUTLIDGE moved to add to Resoln. 4. [FN11] agreed to by the Come. the following, viz. "that the States be divided into three classes, the 1ST. class to have 3 members, the 2d. two. & the 3d. one member each; that an estimate be taken of the comparative importance of each State at fixed periods, so as to ascertain the number of members they may from time to time be entitled to"

FN10 In the transcript the vote reads: "Massachusetts, Pennsylvania, Virginia, [Mr. Randolph and Mr. Mason, no; Mr. Blair, Doctor McClurg and Mr. Madison, aye; General Washington not consulted,] aye-3; Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina, Georgia, no-7; Delaware, divided, [Mr. Read and Mr. Dickinson, aye; Mr. Bedford and Mr. Basset, no]."

FN11 The words "the fourth Resolution" are substituted in the transcript for "Resoln. 4."

The committee of the whole took up a clause in Resolution #6, Congressional power to veto state laws.

Charles Pinckney (SC) reminded delegates, the States repeatedly defeated the laws of Congress and Treaties with foreign nations. The States must be subdued.

James Madison (VA) framed the question as an “either, or.” Either Congress was empowered to peacefully negate odious state laws, or the general government would resort to armed force. The second option was out of the question. Civil war would result. No, a veto would prevent encroachment of federal authority, treaty violations, abuse of fellow states and oppression of factions within their states.

(Taming the source of trouble under the Articles, the States, was seen as paramount. Cooler heads would prevail later. Let’s not forget that the Articles were essentially ignored by the States from the beginning. States routinely ignored tax requisitions, refused to abide by the peace treaty with Great Britain, singly granted favorable trade deals with Great Britain, and taxed the imports of goods from other states. So it was essential to rein in wild State initiatives, yet how could the power be framed to limit abuse by Congress, to avoid “enslaving” the States? The answers would largely end up in Article I Section 10 of the Constitution, which is a list of actions the States may not take.)

Hugh Williamson (NC) cautioned not to intrude on internal state police powers.

Elbridge Gerry (MA) (thumped Mr. Madison) While he would support such measures as to prevent state issuance of paper money (An eventual Article I Section 10 prohibition), he opposed such overwhelming power. It would enslave the states. He so much as said that no moonbat had ever expressed such a thought in any newspaper column or pamphlet. It would never pass state ratifying conventions. The states have different interests and are largely ignorant of other state interests. The negative will be abused. (Ouch!)

Roger Sherman (CN) thought the situations in which the negative was to be applied could be defined.

James Wilson (PA) thought the proposal to be right. He obliquely brought up the fact that states could obey or disobey Congressional law as they pleased. He equated “federal liberty” to states as civil liberty is to individuals. He referred to Lochean freedom in a state of nature. It did not take long after independence for states to move from selflessness in the common interest to cutting for each, “a slice from the common loaf.” Wilson spoke as an insider when he asked delegates to compare the first and last drafts of the Articles of Confederation. No sooner were the State governments formed than their jealousies and ambitions began. Will not the general interest be continually sacrificed to the local?

John Dickinson (DE) thought the probability of the general government to be injured by the states to be greater than the reverse. Large States would abuse the Small States.

Gunning Bedford (DE) tore into the idea. Large States would crush the Smaller. Only force would answer the problem, because the Small States would never approve of such a power. The Randolph/Virginia Plan was an impossibility. Also, as a practical matter, were State Laws to be held in abeyance until they were transported eight hundred miles to Congress to be deliberated for an indeterminate time and transported another eight miles back? Bah!

James Madison (VA) spent less time on the merits of negation than the consequences of dissolution.

Pierce Butler (SC) informed the convention that this clause would defeat ratification of the Constitution.

The motion to veto state laws did not pass, 7-3. (Unlike most resolutions/clauses, this one would not be reconsidered. It was dead.) >p>

Elbridge Gerry (MA) and Rufus King (MA) motioned and the Convention passed, to reconsider the mode of electing the Executive tomorrow.

Charles Pinckney (SC) and John Rutlidge (SC) moved to devise a proportional rule of representation for members of the first branch.

Adjourned.

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