"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.
Of course judicial review is a part of judicial power.
(above quote and many others)...fascinating/educational post AND thread. Thanks to all.