Posted on 08/23/2011 2:34:41 AM PDT by Jacquerie
Article VII Sections 1, 6 & 7. Second Grand Committee Report: Militias and RKBA. Civil War. Princes. Articles VIII, IX. Congressional Veto of State Law. James Wilson and Judicial Review. State Debt. Speculators. Treaties.
In Convention.
The Report of the Committee of Eleven made Aug: 21. [FN2] being taken up, and the following clause being under consideration to wit "To make laws for organizing, arming & disciplining the Militia, and for governing such part [FN3] of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-"
Mr. SHERMAN moved to strike out the last member- "and authority of training &c. He thought it unnecessary. The States will have this authority of course if not given up.
Mr. ELSWORTH doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to officers. He remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject.
Mr. KING, by way of explanation, said that by organizing, the Committee meant, proportioning the officers & men-by arming, specifying the kind size & caliber of arms-& by disciplining prescribing the manual exercise evolutions &c.
Mr. SHERMAN withdrew his motion
Mr. GERRY. This power in the U. S. as explained is making the States drill- sergeants. He had as lief let the Citizens of Massachussets be disarmed, as to take the command from the States, and subject them to the Genl. Legislature. It would be regarded as a system of Despotism.
Mr. MADISON observed that "arming" as explained did not did not extend to furnishing arms; nor the term "disciplining" to penalties & Courts Martial for enforcing them.
Mr. KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included [FN4] authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury: that laws for disciplining, must involve penalties and every thing necessary for enforcing penalties.
Mr. DAYTON moved to postpone the paragraph, in order to take up the following proposition
"To establish an uniform & general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining & governing such part of them as may be employed in the service of the U. S., reserving to the States respectively the appointment of the officers, and all authority over the Militia not herein given to the General Government"
On the question to postpone in favor of this proposition: it passed in the Negative
N. H. no. Mas no. Ct. no. N. J. ay. P. no. Del. no. Maryd. ay. Va. no. N. C. no. S. C. no. Geo. ay. [FN5]
Mr. ELSWORTH & Mr. SHERMAN moved to postpone the 2d. clause in favor of the following "To establish an uniformity of arms, exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States" The object of this proposition was to refer the plan for the Militia to the General Govt. but [FN6] leave the execution of it to the State Govts.
Mr. LANGDON said He could not understand the jealousy expressed by some Gentleman. [FN7] The General & State Govts. were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Govt. is mine, the State Govt. is mine. In transferring power from one to the other, I only take out of my left hand what it can not so well use, and put it into my right hand where it can be better used.
Mr. GERRY thought it was rather taking out of the right hand & putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State.
Mr. DAYTON was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets &c.
Genl. PINKNEY preferred the clause reported by the Committee, extending the meaning of it to the case of fines &c.
Mr. MADISON. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepared its Militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been if each County had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution.
Mr. L. MARTIN was confident that the States would never give up the power over the Militia; and that, if they were to do so the militia would be less attended to by the Genl. than by the State Governments.
Mr. RANDOLPH asked what danger there could be that the Militia could be brought into the field and made to commit suicide on themselves. This is a power that can not from its nature be abused, unless indeed the whole mass should be corrupted. He was for trammelling the Genl. Govt. wherever there was danger, but here there could be none. He urged this as an essential point; observing that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people agst. every apprehension that could produce murmur.
On [FN8] Question on Mr. Elsworth's Motion
N. H. no. Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no. [FN9]
A motion was then made to recommit the 2d. clause which was negatived.
On the question to agree to the 1st. part of the clause, namely
"To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S."
N. H ay. Mas. ay. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN10]
Mr. MADISON moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, under the rank of General officers"
Mr. SHERMAN considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the Genl. Government, every man of discernment would rouse them by sounding the alarm to them.
Mr. GERRY. Let us at once destroy the State Govts. have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving full powers to the Genl. Govt. but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention agst. pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict.
Mr. MADISON. As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.
On the Question to agree to Mr. Madison's motion
N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. [FN11] ay. [FN12]
On the question to agree to the "reserving to the States the appointment of the officers." It was agreed to nem: contrad: On the question on the clause "and the authority of training the Militia according to the discipline prescribed by the U. S.-" N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. no. N. C. ay. S. C. no. Geo. no. [FN13]
On the question to agree to Art. VII. Sect. 7. [FN14] as reported It passed nem. contrad:
Mr. PINKNEY urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence and moved to insert, after Art VII Sect 7. the clause following- "No person holding any office of profit or trust [FN15] under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State which passed nem: contrad.
Mr. RUTLIDGE moved to amend Art: VIII [FN14] to read as follows,
"This Constitution & the laws of the U. S. made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding." which was agreed to nem: contrad.
Art: IX [FN14] being next for consideration,
Mr. Govr. MORRIS argued agst. the appointment of officers by the Senate. He considered the body as too numerous for the [FN16] purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.
Mr. WILSON was of the same opinion & for like reasons.
The [FN17] art IX being waived and art VII. sect 1. [FN18] resumed,
Mr. Govr. MORRIS moved to strike the following words out of the 18 clause "enforce treaties" as being superfluous, since treaties were to be "laws"-which was agreed to nem: contrad:
Mr. Govr. MORRIS moved to alter [FN19] 1st. part. of [FN19] 18. clause sect. 1. to execute the laws of the Union, suppress insurrections and repel invasions."
Art. VII [FN20] so as to read "to provide for calling forth the Militia, which was agreed to nem: contrad
On the question then to agree to the 18 clause of Sect. 1. art: 7. as amended it passed in the affirmative nem: contradicente.
Mr. C- PINKNEY moved to add as an additional power to be vested in the Legislature of the U. S. "To negative all laws passed by the several States interfering in the opinion of the Legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same" This principle he observed had formerly been agreed to. He considered the precaution as essentially necessary: The objection drawn from the predominance of the large States had been removed by the equality established in the Senate.
Mr. BROOME 2ded. the proposition.
Mr. SHERMAN thought it unnecessary; the laws of the General Government being Supreme & paramount to the State laws according to the plan, as it now stands.
Mr. MADISON proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the modification might be made better.
Mr. MASON wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the Sanction of the General Legislature? Is this to sit constantly in order to receive & revise the State Laws? He did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie agst. it.
Mr. WILLIAMSON thought it unnecessary, & having been already decided, a revival of the question was a waste of time.
Mr. WILSON considered this as the key-stone wanted to compleat the wide arch of Government, we are raising. The power of selfdefence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.
Mr. RUTLIDGE. If nothing else, this alone would damn and ought to damn the Constitution. Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them whose bye laws would not be subject to this shackle.
Mr. ELSEWORTH observed that the power contended for wd. require either that all laws of the State Legislatures should previously to their taking effect be transmitted to the Genl. Legislature, or be repealable by the Latter; or that the State Executives should be appointed by the Genl. Government, and have a controul over the State laws. If the last was medit. ated let it be declared.
Mr. PINKNEY declared that he thought the State Executives ought to be so appointed with such a controul, & that it would be so provided if another Convention should take place.
Mr. GOVERNR. MORRIS did not see the utility or practicability of the proposition of Mr. Pinkney, but wished it to be referred to the consideration of a Committee.
Mr. LANGDON was in favor of the proposition. He considered it as resolvable into the question whether the extent of the National Constitution was to be judged of by the Genl. or the State Governments.
On the question for commitment, it passed in the negative.
N. H. ay. Masts. no. Cont. no. N. J. no. Pa. ay. Del: ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [FN21]
Mr. PINKNEY then withdrew his proposition.
The 1st. sect. of art: VII [FN22] being so amended as to read "The Legislature shall fulfil the engagements and discharge the debts of the U. S. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to.
Mr. BUTLER expressed his dissatisfaction lest it should compel payment as well to the Blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. He would be ready he said tomorrow to vote for a discrimination between those classes of people, and gave notice that he should [FN23] move for a reconsideration.
Art IX. sect. 1. [FN24] being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."
Mr. MADISON observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.
Mr. Govr. MORRIS did not know that he should agree to refer the making of Treaties to the Senate at all, but for the present wd. move to add, as an amendment to the section after "Treaties"- [FN25] "but no Treaty shall be binding on the U. S. which is not ratified by a law."
Mr. MADISON suggested the inconvenience of requiring a legal ratification of treaties of alliance for the purposes of war &c &c
Mr. GHORUM. Many other disadvantages must be experienced if treaties of peace & all negociations are to be previously ratified- and if not previously, the Ministers would be at a loss how to proceed. What would be the case in G. Britain if the King were to proceed in this manner. American Ministers must go abroad not instructed by the same Authority (as will be the case with other Ministers) which is to ratify their proceedings.
Mr. Govr. MORRIS. As to treaties of alliance, they will oblige foreign powers to send their Ministers here, the very thing we should wish for. Such treaties could not be otherwise made, if his amendment shd. succeed. In general he was not solicitous to multiply & facilitate Treaties. He wished none to be made with G. Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them.
Mr. WILSON. In the most important Treaties, the King of G. Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr. Morris will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.
Mr. DICKINSON concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little States; wch. would otherwise have an equal share in making Treaties.
Docr. JOHNSON thought there was something of solecism in saying that the acts of a Minister with plenipotentiary powers from one Body, should depend for ratification on another Body. The Example of the King of G. B. was not parallel. Full & compleat power was vested in him. If the Parliament should fail to provide the necessary means of execution, the Treaty would be violated.
Mr. GHORUM in answer to Mr. Govr. MORRIS, said that negociations on the spot were not to be desired by us, especially if the whole Legislature is to have any thing to do with Treaties. It will be generally influenced by two or three men, who will be corrupted by the Ambassadors here. In such a Government as ours, it is necessary to guard against the Government itself being seduced.
Mr. RANDOLPH observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the Motion of Mr. Govr. Morris should be postponed, and on this question It was lost the States being equally divided.
Massts. no. Cont. no. N. J. ay. Pena. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [FN26]
On Mr. Govr. Morris Motion, Masts. no. Cont. no. N. J. no. Pa. ay. Del. no. Md. no. Va. no. N. C. divd. S. C. no. Geo. no. [FN27]
The several clauses of Sect: 1. Art IX, were then separately postponed after inserting "and other public Ministers" next after "Ambassadors."
Mr. MADISON hinted for consideration, whether a distinction might not be made between different sorts of Treaties-Allowing the President & Senate to make Treaties eventual and of Alliance for limited terms-and requiring the concurrence of the whole Legislature in other Treaties.
The 1st. Sect art IX. was finally referred nem: con: to the committee of Five, and the House then
Adjourned
FN1 The year "1787" is omitted in the transcript.
FN2 The words "the twenty-first of August" are substituted in the transcript for "Aug: 21."
FN3 The transcript uses the word "part" in the plural.
FN4 The word "the" is here inserted in the transcript.
FN5 In the transcript the vote reads: "New Jersey, Maryland, Georgia, aye-3; New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, Virginia, North Carolina, South Carolina, no-8."
FN6 The word "to" is here inserted in the transcript.
FN7 The word "gentleman" is used in the plural in the transcript.
FN8 The word "the" is here inserted in the transcript.
FN9 In the transcript the vote reads: "Connecticut, aye; the other ten States, no."
FN10 In the transcript the vote reads: "New Hampshire, Massachusetts, New Jersey, Pennsyalvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye-9; Connecticut, Maryland, no-2."
FN11 In the printed Journal, Geo: no.
FN12 In the transcript the vote reads: "New Hampshire, South Carolina, Georgia, [FN*] aye-3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no-8."
FN13 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, North Carolina, aye-7; Delaware, Virginia, South Carolina, Georgia, no-4."
FN14 See ante.
FN15 The words "profit or trust" are transposed to read "trust or profit" in the transcript.
FN16 The word "that" is substituted in the transcript for "the."
FN17 The word "the" is crossed out in the transcript.
FN18 See ante.
FN19 The word "the" is here inserted in the transcript.
FN20 The transcript omits "sect. 1. art. VII."
FN21 In the transcript the vote reads: "New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, aye-5; Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia, no-6."
FN22 The phrase "The first clause of article 7. section 1" is substituted in the transcript for "The 1st sect of art: VII."
FN23 The word "would" is substituted in the transcript for "should."
FN24 See p. -.
FN25 The words "the following" are here inserted in the transcript.
FN26 In the transcript the vote reads: "New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye-5; Massachusetts, Connecticut, North Carolina, South Carolina, Georgia, no-5."
FN27 In the transcript the vote reads: "Pennsylvania, aye-1; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, South Carolina, Georgia, no-8."
"To make laws for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the U. States."
Roger Sherman (CN) moved to strike, “and the authority of training the Militia according to the discipline prescribed by the U. States,” as properly residing with the States.
Judge Oliver Ellsworth (CN) projected discomfort with the clause, particularly the word, “discipline,” which could be corrupted to include all power on the subject.
Rufus King (MA) elaborated what the Grand Committee meant by the word, “organizing.”
(King’s comment was illustrative of the difference between Constitutions and Law Codes. The former must direct lawmakers in their law writing duty and not become a Justinian Code equivalent.)
Mr. Sherman withdrew his motion.
Elbridge Gerry (MA) rejected National control of the State Militias as despotic.
James Madison (VA) said the clause did not mean furnishing arms, nor specifics as to courts martials.
Rufus King (MA) contradicted Mr. Madison, in that Mr. King explained arming as not just uniformity but the modes of procurement, either by the individual militiaman, State, or National Government. By discipline, the committee meant, well, discipline in the form of defining penalties and their enforcement.
(No, there is no specific RKBA here, but more historic evidence how our Framers viewed personal weapons use in the State militias.)
Jonathan Dayton (NJ) motioned to postpone the clause/paragraph in order to consider, “To establish an uniform & general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining & governing such part of them as may be employed in the service of the U. S., reserving to the States respectively the appointment of the officers, and all authority over the Militia not herein given to the General Government."
Mr. Dayton’s motion to postpone failed 8-3.
Judge Oliver Ellsworth (CN) and Roger Sherman (CN) moved to postpone the second clause in order to consider, “To establish an uniformity of arms, exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States." (Excellent! IMHO) Let the National Government set the Militia plan, trust the States to execute.
John Langdon (NH), in perhaps an attempt to lower the temperature of the proceedings, eloquently described the ideal division of State/National powers.
Elbridge Gerry (MA) refuted Mr. Langdon. Would liberty be safer in the hands of the few in the National Government or the many in the States?
Jonathan Dayton (NJ) disputed uniformity in Militias.
General Pinckney (SC) preferred the clause as written, from the committee.
James Madison (VA) redirected the convention to the object of the debate; the discipline of the Militia. He cut to the chase and said States to date did not carry out their duty as per Article VI of the Confederation (“every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”) and they would carry out future responsibilities as well as they paid their lawful requisitions. (Ouch!) Poor State behavior in this matter made Militias a concern of the National Government which should be addressed in the Constitution.
Luther Martin (MD) responded that the States would not give up power over their Militias.
Governor Edmund Randolph saw no danger in the clause, officers were appointed by the States. He supported trammeling the National Government where danger lurked; there was none here.
Mr. Ellsworth’s motion, “To establish an uniformity of arms, exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States," failed unanimously.
A motion to commit the second clause was defeated.
A vote to accept the first portion of the clause, “To make laws for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U. S,” passed 9-2.
James Madison (VA) moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, under the rank of General officers."
Roger Sherman (CN) blew a gasket. Anyone with sense would oppose militias leaders beholden to the National Government.
Elbridge Gerry (MA) warned against pushing the plan too far. Since the States were not to be abolished, do not give the National Government powers inconsistent with their existence. Do not promote Civil War.
James Madison (VA) reminded delegates the greatest danger was dissolution. The solution was government with sufficient powers. Large standing Armies threatened liberty, militias provided requisite security without threatening liberty. (Mr. Madison’s quick response illustrated the two directions our Framers were pulled. We needed a government strong enough to protect our rights and to meet the objects of government, yet structured so as to prevent infringement of those rights.)
Mr. Madison’s motion to have the National Government appoint the commanding officers of the State militias was defeated 9-2.
The clause, “reserving to the States respectively, the appointment of the officers,” passed without opposition.
Likewise for the last clause, "and the authority of training the Militia according to the discipline prescribed by the US," passed 7-2.
Article VII Section 7, “The United States shall not grant any title of Nobility,” passed unanimously.
Charles Pinckney (SC) spoke as one who saw government corruption. He motioned to add to Article VII Section 7, “No person holding any office of profit or trust under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State,” which passed without opposition.
Article VIII was next. “The Acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding.”
John Rutlidge (SC) moved to amend Article VIII. "This Constitution & the laws of the U. S. made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding," which was agreed to without opposition.
Up next, Article IX, “The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.”
Governeur Morris (PA) argued again against such appointments by the Senate, which would be subject to cabal and was inherently unqualified. They could hardly be allowed to fill vacancies they created.
James Wilson (PA) concurred.
Article IX was “waived,” to reconsider Article VII Section 1, Clause 18, “To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions.”<
Governeur Morris (PA) moved to strike, “enforce treaties,” as superfluous, since treaties were laws, which was agreed to without opposition.
Governeur Morris (PA) then motioned to alter Clause 18 to read, “To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” which was agreed to without opposition.
The 18th Clause as amended to Section 1 of Article VII passed without opposition.
Charles Pinckney (SC) brought up once again, Congressional veto of State laws. This time, if agreed to by two thirds of Congress.
Jacob Broome (DE) seconded.
Roger Sherman (CN) thought it unnecessary, given the laws of the General Government were to be Supreme to State laws.
(Hmm, so without Congressional veto, how were State laws that contradicted the Constitution to be dealt with? Call out the militia?)
James Madison (VA) motioned to commit the issue. He was friendly to it, but thought it may become better with modification.
George Mason (VA) questioned once again, the practicality of Congress sitting to receive and revise States laws.
Hugh Williamson (NC) brought up the fact that the issue had been debated and decided. To go further with it was a waste of time.
James Wilson (PA) considered Congressional veto the keystone to the plan. Self defense by both States and the National Government was necessary.
“The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.”
(Here is another assumption that Judicial Review is contained within the Judicial Power)
John Rutlidge (SC) vehemently opposed Congressional veto of State Law.
Judge Oliver Ellsworth (CN) noted the power sought was control over the States either by prevention of the laws taking effect, to be repealed thereafter or via General Government appointment of State Governors. If the last was meditated, let it be said so.
(With Mr. Pinckney’s next comment, it is apparent extra Convention discussions occurred regarding appointments of State Governors.)
Charles Pinckney (SC) said yes, he would appoint State Governors with veto power over State Legislatures and it would happen in another Convention. (Another throwback here to the British system, where the Crown appointed colonial governors.)
Governeur Morris (PA) would refer it to a committee.
John Langdon (NH) (brought up an interesting question) favored the proposition. Was the extent of the National Government to be determined by the National or State Governments?
On the question to commit the question, it failed 6-5.
Mr. Pinckney withdrew his motion to consider Congressional veto of State Laws.
Article VII Section 1 Clause 1 was amended to read, “"The Legislature shall fulfill the engagements and discharge the debts of the U. S. & shall have the power to lay & collect taxes, duties, imposts, & excises." (So the National Government took on the noble and legitimate war debt of the States. Today, the States clamor for money to pay their union employee pensions. How far we have fallen. Taking on State debt was big plus for ratification.)
Pierce Butler (SC) did not wish to enrich speculators when the goal was to pay soldiers who fought and bled for their country. (Did he refer to those who bought discounted continental dollars, and looked forward to payment in specie?)
Article IX was resumed, “The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.”
James Madison (VA) said the Senate represented States and the President should be an agent in the matter of treaties.
Governeur Morris (PA) did not think the Senate should be involved in treaties at all. He motioned to add after "Treaties,” "but no Treaty shall be binding on the U. S. which is not ratified by a law."
Nathaniel Gorham (MA) brought up the practical problems of prior legal ratification.
Governeur Morris (PA) thought the more difficult to make treaties the better.
James Wilson (PA) favorably compared Mr. Morris’ amendment to that which existed in Great Britain.
(He brought up a problem with the Senate’s treaty making/ratification power we deal with to this day. Treaties are equal as to enforcement to our Constitution. Mr. Wilson pointed out the danger of a single body capable of not only making law without concurrence of the House and President, but equal to, or perhaps superior to the Constitution. (?) Ouch!)
(Mr. Wilson’s contention that a treaty could require SC rice to be exported from a particular port, was duly noted, and prevented in Article 1 Section 9 of our Constitution.)
John Dickinson (DE) supported the amendment, though it was supposedly unfavorable to Small States.
Dr. William Samuel Johnson (CN) disputed any parallel with treaty making in Great Britain.
Nathaniel Gorham (MA) in response to Mr. Morris did not view negotiations by just a few men to be the best; they would be corrupted by Ambassadors here. A government like ours proposed must guard against corruption.
Governor Edmund Randolph, considering the objections raised, asked to postpone Mr. Morris’ motion. It was defeated on an equal vote.
On Mr. Morris’ motion, "but no Treaty shall be binding on the U. S. which is not ratified by a law," it failed 8-1-1.
“And other public ministers” was added after “Ambassadors.” The amended Section 1 of Article IX was then postponed.
James Madison (VA) “hinted” for discrete treaty making powers according to purpose.
Article IX Section 1 was then referred to the Committee of Five (Committee of Detail).
Adjourned.
Fascinating Reading. To get in the head of the founders, and see why they wrote what they did.
Today’s debate over militias was pure Americana. Like later bluegrass music, Nascar and baseball, we had an approach, an attitude that was unique to history. What other nation in the modern era utilized an armed citizenry for its defense?
Despite the dangers surrounding our young nation, we rejected standing armies. Despite less than reliable service from militias during the revolutionary war, our Framers embraced a militia based defense system whose control was shared between the States and National government. Pure Americana.
Militias defeated the British. Do you know who finally instituted a standing army for the US? IIRC, it was the old flip-flopper himself—James Madison, while serving his disastrous presidential term.
Of course judicial review is a part of judicial power.
Indeed fascinating reading. I find the part concerning Treaties of particular interest. Especially Jac’s note:
concerning Wilson— and possibility that Treaties might be seen as “perhaps superior to the Constituion? Ouch indeed!!!
I am reminded of Dulles -who if I read him right made that very assumption. Too often it seems Congress has either misunderstood Treaties —or I was taught wrong. For I was taught that Treaties applied only to our national Govt with its conversation with/dealing with foreign States. Too often Congress seems intent upon applying foreign treaties to the US in amending our Constitution and laws. Need to learn more I suppose of Wilson. and Treaties.But Ouch indeed!!!!
What, no Boners from Brutus this morning?
(above quote and many others)...fascinating/educational post AND thread. Thanks to all.
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