#17 “Resolved that provision ought to be made for future amendments of the articles of Union, whensoever it shall seem necessary,” passed without opposition.
Next up, #18 “Resolved that the Legislative, Executive, and Judiciary powers within the several States ought to be bound by oath to support the articles of Union.”
Hugh Williamson (NC) thought the reverse would be needed, an oath from National Officers to support the States.
Elbridge Gerry (MA) motioned to amend the 18th so as to require support of the National Government as well. It passed without opposition. (Little slipped by Mr. Gerry)
James Wilson (PA) (Was not fond of oaths. Was he Quaker?) did not see the value of oaths. They did nothing for neither good nor bad governments. Would such oaths negate Resolution #17?
Nathaniel Gorham (MA) found no such contradiction. Perhaps the oath could only require fidelity to the Constitution. An alteration of the Constitution could not be regarded as a violation.
Elbridge Gerry (MA) thought oaths a good thing. Up until now, officers of the Union and those of the States felt themselves distinct and tended to support interference by the States.
Resolution #18, Oaths to support the articles of Union passed without opposition.
Up next, Resolution 19, ”that the amendments which shall be offered to the confederation by the Convention, ought at a proper time or times, after the approbation of Congress to be submitted to an assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the People to consider and decide thereon.”
Judge Oliver Ellsworth (CN) and William Patterson (NJ) motioned and seconded ratification by State Legislatures.
George Mason (VA) regarded popular ratification via delegates as the most important of all Resolutions. State Legislatures cannot be greater than their creators, the people. The people retain all power not given up by them in State Constitutions. (Shades of the Tenth Amendment.)
He went on. Any law passed by a State could be repealed by succeeding Legislatures. Should the National Government rest on such a weak foundation? (By this, only the people could secede from the Union. Was this done in 1860-61 in all seceding states?) Some State governments such as his VA, were not derived from the people in the first place.
Governor Edmund Randolph (VA) expected local state demagogues to oppose ratification. They stand to lose some powers and will attempt to influence the people. He doubted some States would refer the Constitution to ratifying conventions of the people. (Mr. Randolph, who submitted the plan of government back in May, would not sign the finished Constitution. He would later support its ratification at the VA Convention.)
Elbridge Gerry (MA) questioned the legitimacy of State governments and the Confederacy, but they have been around too long to be challenged. The Articles in his opinion were supreme over State Constitutions. Reflecting his mistrust of the people, Mr. Gerry would comply with Article XIII, which required unanimous consent of the States to amend the Articles.
Nathaniel Gorham (MA) opposed submission of the Constitution to State Legislatures because delegates for the purpose would be more candid. Local politicians would lose power and therefore oppose. Dealing with multiple branches will be more difficult than a single Convention. Better men will attend Conventions. Parliamentary chicanery would be employed to delay, delay and delay ratification to death. Why should any State face ruin because a minority placed their narrow interests above the whole? NY had a favorable position regarding commerce over neighboring States and would likely resist changes. (NY, PA, VA, MA were the primary importing States. Their governments taxed these imports to the detriment of consumers in nearby States.)
Judge Oliver Ellsworth (CN) expected more from Legislatures and less from the people than his colleagues. A big draw to ratification would be the transfer of State debts to the National Government. He summarized Mr. Mason’s points as: 1. Legislatures have no authority. 2. Successors could rescind their acts.
As to the second point, subsequent assemblies could not repeal the compact. To the first point, Legislatures at the time of Confederation were thought competent to ratify the Articles. There had been no complaints in that regard. In recent years, Congress appealed to State Legislatures, not the people, for amendments to the Articles.
(While not in Mr. Madison’s notes, Mr. Ellsworth apparently motioned that the States ratify or reject the new Constitution)
Hugh Williamson (NC) thought the wording of Resolution #19 allowed ratification by either State Legislatures or Popularly based Conventions. The ablest men would attend Conventions. (More disdain for the characters in State Legislatures)
Governeur Morris (PA) considered a plea of necessity as justification to get around the Articles a non sequitur. He argued that to modify the Articles, unanimous State consent was needed. Alterations absent this, in violation if Article XIII would be considered null and void by judges. (Another delegate assumed Judicial Review to be inherent in the Judicial Power, though he referred to State judges since there was no judiciary to speak of under the Articles.)
They were not proceeding on the basis of the Confederation. “This Convention is unknown to the Confederation.”
Rufus King (MA) found the State Legislatures competent to ratify. Still, he preferred popularly based Conventions for ratification; they would obviate disputes as to legitimacy of the new Constitution and draw the best men. Another problem was the oaths of State Legislators to State Constitutions. How could they reconcile ratification to an authority supreme to their States?
James Madison (VA) reasoned that States were incompetent to judge the new plan. How could Legislators, in any sort of good conscience, partake of thoroughly violating their State Constitutions by the mere act of ratifying another? Confederate systems are based on States; Constitutions are based on the people.
When State Judges came up against laws that violated the Articles, they could find in favor of the States. For after all, the States were members of a Treaty called the Articles of Confederation. State Judges had no commitment or loyalty of any sort to the Confederacy. In addition, once a treaty was broken, it was no longer in mandatory force. It was a mess.
Under a supreme Constitution ratified by the people the situation was radically different. “A law violating a constitution established by the people themselves would be considered by the Judges as null & void.” (More Pre-Marbury reference to Judicial Review)
On the question to refer the plan to the Legislatures of the States, the motion lost 7-3.
Governeur Morris (PA) motioned for one popularly elected convention, in which the delegates could consider, amend and establish same. He was not seconded.
On the question of Resolution #19, to refer ratification to assemblies chosen by the people, it passed 9-1. (DE – No)
Governeur Morris (PA) and Rufus King (MA) moved to determine how many Senators would represent each State. Each Senator was to vote per capita, not as a block. (Under the Articles, each State had one vote.)
Judge Oliver Ellsworth (CN) approved of per capita voting.
Governeur Morris (PA) moved to assign three Senators per State. Two members would be too small, for if a majority were to constituted a quorum, only fourteen members would be sufficient; a number too small to trust. (Merely achieving a quorum was problematic under the Articles.)
Nathaniel Gorham (MA) supported two v. three members. A small number worked best for important decisions such as war. Besides, the number of states was expected to grow rapidly. He named them, Kentucky, Vermont, the Province of Mayne & Franklin (TN?) Also, a large State or two would likely divide into smaller states.
George Mason (VA) preferred the smaller body of two per State.
Hugh Williamson (NC) thought too many per State would put distant States at a disadvantage.
By a 9-1 vote, the motion to assign three Senators per State failed.
Two Senators per state passed without opposition.
Luther Martin (MD) opposed per capita voting as it diluted the representation of the States. Fellow MD delegate Mr. Carroll wished to further discuss both options.
On the question of the whole motion, two Senators per State voting per capita, was agreed to, 9-1.
William Houston (GA) & Richard Spaight (NC) moved "that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered.” He pointed out the inconvenience and expense of gathering electors from remote areas.
On the question to reconsider, it passed 7-3.
By an 8-2 vote, the question would be considered tomorrow.
Elbridge Gerry (MA) moved to appoint a committee to collect all of the Resolutions and prepare a Constitution, absent the day’s motion to reconsider the Executive.
General Pinckney (SC) reminded the Convention that provision must be made for the prevention of emancipation of slaves, and taxes on exports. (This innocuous sounding demand to prevent taxation of exports will figure large very soon in the debate over slaves, taxation, and representation. It will also end up in the Constitution.)
The motion to form such a committee was agreed to without opposition.
After defeating committees of ten, and seven members, the Convention agreed to five members to be appointed tomorrow.
Adjourned.
Constitutional Convention Ping!
Ah, the good old days.