Journal of the Federal Convention September 10th 1787

Amendments. Conventions. Three Fourths Override. Congressional Approval. Edmund Randolph Speech. Constitutional Deficiencies.

Mr. GERRY moved to reconsider Art XIX. viz. "On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the U. S. shall call a Convention for that purpose." [see Aug. 6.] [FN2] This Constitution he said is to be paramount to the State Constitutions. It follows, hence, from this article that two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State-Constitutions altogether. He asked whether this was a situation proper to be run into.

Mr. HAMILTON 2ded. the motion, but he said with a different view from Mr. Gerry. He did not object to the consequence stated by Mr. Gerry. There was no greater evil in subjecting the people of the U. S. to the major voice than the people of a particular State. It had been wished by many and was much to have been desired that an easier mode for [FN3] introducing amendments had been provided by the articles of [FN4] Confederation. It was equally desireable now that an easy mode should be established for supplying defects which will probably appear in the New System. The mode proposed was not adequate. The State Legislatures will not apply for alterations but with a view to increase their own powers. The National Legislature will be the first to perceive and will be most sensible to the necessity of amendments, and ought also to be empowered, whenever two thirds of each branch should concur to call a Convention. There could be no danger in giving this power, as the people would finally decide in the case.

Mr. MADISON remarked on the vagueness of the terms, "call a Convention for the purpose," as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts?

On the motion of Mr. Gerry to reconsider N. H. divd. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. GEO ay. [FN5]

Mr. SHERMAN moved to add to the article "or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States."

Mr. WILSON moved to insert "two thirds of" before the words "several States"- on which amendment to the motion of Mr. Sherman.

N. H. ay. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [FN6]

Mr. WILSON then moved to insert "three fourths of" before "the several Sts" which was agreed to nem: con:

Mr. MADISON moved to postpone the consideration of the amended proposition in order to take up the following,

"The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U S:" [FN7]

Mr. RUTLIDGE said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition: [FN7] "provided that no amendments which may be made prior to the year 1808, shall in any manner affect the 4 & 5 sections of the VII article"-The postponement being agreed to,

N. H. divd. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo ay. [FN9]

Mr. GERRY moved to reconsider art: XXI and XXII. from the latter of which "for the approbation of Congs." had been struck out. He objected to proceeding to change the Government without the approbation of Congress, as being improper and giving just umbrage to that body. He repeated his objections also to an annulment of the confederation with so little scruple or formality.

Mr. HAMILTON concurred with Mr. Gerry as to the indecorum of not requiring the approbation of Congress. He considered this as a necessary ingredient in the transaction. He thought it wrong also to allow nine States as provided by art XXI. to institute a new Government on the ruins of the existing one. He Wd. propose as a better modification of the two articles (XXI & XXII) that the plan should be sent to Congress in order that the same if approved by them, may be communicated to the State Legislatures, to the end that they may refer it to State Conventions; each Legislature declaring that if the Convention of the State should think the plan ought to take effect among nine ratifying States, the same shd. take effect accordingly.

Mr. GORHAM. Some States will say that nine States shall be sufficient to establish the plan, others will require unanimity for the purpose. And the different and conditional ratifications will defeat the plan altogether.

Mr. HAMILTON. No Convention convinced of the necessity of the plan will refuse to give it effect on the adoption by nine States. He thought this mode less exceptionable than the one proposed in the article, and [FN10] would attain the same end.

Mr. FITZIMMONS remarked that the words "for their approbation" had been struck out in order to save Congress from the necessity of an Act inconsistent with the Articles of Confederation under which they held their authority.

Mr. RANDOLPH declared, if no change should be made in the [FN11] this part of the plan, he should be obliged to dissent from the whole of it. He had from the beginning he said been convinced that radical changes in the system of the Union were necessary. Under this conviction he had brought forward a set of republican propositions as the basis and outline of a reform. These Republican propositions had however, much to his regret, been widely, and in his opinion, irreconcileably departed from. In this state of things it was his idea and he accordingly meant to propose, that the State Conventions shd. be at liberty to offer amendments to the plan; and that these should be submitted to a second General Convention, with full power to settle the Constitution finally. He did not expect to succeed in this proposition, but the discharge of his duty in making the attempt, would give quiet to his own mind.

Mr. WILSON was against a reconsideration for any of the purposes which had been mentioned.

Mr. KING thought it would be more respectful to Congress to submit the plan generally to them; than in such a form as expressly and necessarily to require their approbation or disapprobation. The assent of nine States be considered as sufficient; and that it was more proper to make this a part of the Constitution itself, than to provide for it by a supplemental or distinct recommendation.

Mr. GERRY urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. If nine out of thirteen can dissolve the compact, Six out of nine will be just as able to dissolve the new one hereafter.

Mr. SHERMAN was in favor of Mr. King's idea of submitting the plan generally to Congress. He thought nine States ought to be made sufficient: but that it would be best [FN12] to make it a separate act and in some such form as that intimated by Col: Hamilton, than to make it a particular article of the Constitution.

On the question for reconsidering the two articles, XXI & XXII- N. H. divd. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. [FN13]

Mr. HAMILTON then moved to postpone art XXI in order to take up the following, containing the ideas he had above expressed, viz Resolved that the foregoing plan of a Constitution be transmitted to the U. S. in Congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the Legislatures of the several States, to the end that they may provide for its final ratification by referring the same to the Consideration of a Convention of Deputies in each State to be chosen by the people thereof, and that it be recommended to the said Legislatures in their respective acts for organizing such convention to declare, that if the said Convention shall approve of the said Constitution, such approbation shall be binding and conclusive upon the State, and further that if the said Convention should be of opinion that the same upon the assent of any nine States thereto, ought to take effect between the States so assenting, such opinion shall thereupon be also binding upon such State, and the said Constitution shall take effect between the States assenting thereto"

Mr. WILSON. This motion being seconded, it is necessary now to speak freely. He expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the Convention on the approbation of Congress. He declared it to be worse than folly to rely on the concurrence of the Rhode Island members of Congs. in the plan. Maryland has voted on this floor; for requiring the unanimous assent of the 13 States to the proposed change in the federal System. N. York has not been represented for a long time past in the Convention. Many individual deputies from other States have spoken much against the plan. Under these circusmtances can it be safe to make the assent of Congress necessary. After spending four or five months in the laborious & arduous task of forming a Government for our Country, we are ourselves at the close throwing insuperable obstacles in the way of its success.

Mr. CLYMER thought that the mode proposed by Mr. Hamilton would fetter & embarrass Congs. as much as the original one, since it equally involved a breach of the articles of Confederation.

Mr. KING concurred with Mr. Clymer. If Congress can accede to one mode, they can to the other. If the approbation of Congress be made necessary, and they should not approve, the State Legislatures will not propose the plan to Conventions; or if the States themselves are to provide that nine States shall suffice to establish the System, that provision will be omitted, every thing will go into confusion, and all our labor be lost.

On the question to postpone in order to take up Col: Hamilton'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. [FN14]

Col: HAMILTON withdrew the remainder of the motion to postpone art XXII, observing that his purpose was defeated by the vote just given;

Mr. WILLIAMSON & Mr. GERRY moved to re-instate the words "for the approbation of Congress" in art: XXII which was disagreed to nem: con:

Mr. RANDOLPH took this opportunity to state his objections to the System. They turned on the Senate's being made the Court of Impeachment for trying the Executive-on the necessity of 3/4 instead of 2/3 of each house to overrule the negative of the President-on the smallness of the number of the Representative branch,-on the want of limitation to a standing army-on the general clause concerning necessary and proper laws-on the want of some particular restraint on navigation acts-on the power to lay duties on exports-on the Authority of the General Legislature to interpose on the application of the Executives of the States-on the want of a more definite boundary between the General & State Legislatures-and between the General and State Judiciaries-on the the unqualified power of the President to pardon treasons-on the want of some limit to the power of the Legislature in regulating their own compensations.

With these difficulties in his mind, what course he asked was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in Tyranny? He was unwilling he said to impede the wishes and Judgment of the Convention, but he must keep himself free, in case he should be honored with a seat in the Convention of his State, to act according to the dictates of his judgment. The only mode in which his embarrassments could be removed, was that of submitting the plan to Congs. to go from them to the State Legislatures, and from these to State Conventions having power to adopt reject or amend; the process to close with another General Convention with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government. He accordingly proposed a Resolution to this effect.

Col: MASON urged & obtained that the motion should lie on the table for a day or two to see what steps might be taken with regard to the parts of the system objected to by Mr. Randolph.

Mr. PINKNEY moved "that it be an instruction to the Committee for revising the stile and arrangement of the articles agreed on, to prepare an Address to the People, to accompany the present Constitution, and to be laid with the same before the U. States in Congress."

[FN15] Mr. RANDOLPH moved to refer to the Committee also a motion relating to pardons in cases of Treason-which was agreed to nem: con:

FN5 In the transcript the vote reads: u"Massachustts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georiga, aye-9; New Jersey, no-1; New Hampshire, divided."

FN6 In the transcript the vote reads: "New Hampshire, Pennsylvania, Delaware, Marylan, Virginia, aye-5; Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia, no-6."

FN7 The Printed Journal makes the succeeding proviso as to sections 4 & 5. of art: VII [FN8] moved by Mr. Rultidge, part of the proposition of Mr. Madison.

FN8 The words "the fourth and fifth sections of the seventh article" are substituted in the transcript for "sections 4 & 5. of art: VII."

FN9 In the transcript the vote reads: "Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye- 9; uDelaware, no-1; New Hampshire, divided."

FN12 The word "best" is crossed out in the transcript and "better" is written above it.

FN13 In the transcript the vote reads: "Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, Georgia, aye-7; Massachusetts, PEnnsylvania, South Carolina, no-3; uNew Hampshire, divided."

FN14 In the transcript the vote reads: "Connecticut, aye-1; New Hamphsire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georiga, no-10."

Elbridge Gerry motioned to reconsider Article 19, “On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.” It appeared to him that a Convention, by a simple majority may impose amendments that supersede State Constitutions.

Oops.

Alexander Hamilton seconded Mr. Gerry, but not for his reasons. One of the problems with the Articles of Confederation was the difficulty of amending them. (As a confederacy, a treaty among member nations, ratification by all was required for amendments.) He would allow two thirds of Congress to call a Convention, it would be the first to sense the need.

James Madison supported reconsideration. The terms were too vague.

Mr. Gerry’s motion passed 9-1-1.

Roger Sherman motioned and Mr. Gerry seconded to add, "or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States."

James Wilson motioned to insert, "two thirds of" before the words "several States.”

The Article would read, “On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by two thirds of several States.”

The motion to add “two thirds of,” failed 6-5.

James Wilson motioned to make it three fourths, which passed without opposition.

James Madison motioned and Mr. Hamilton seconded to postpone further consideration in order to take up the following: "The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U S:"

John Rutlidge would never approve an article that could deprive the South of slaves. To placate such concerns, he motioned to postpone in order to consider, "provided that no amendments which may be made prior to the year 1808, shall in any manner affect the 4 & 5 sections of the VII article.”

Article 19 as amended by Mr. Madison and Mr. Rutlidge passed 9-1.

(So, we now have the famous clauses which preserved the institution of slavery without using the word.)

Elbridge Gerry motioned to reconsider Articles XXI & XXII. The new plan should be approved by Congress before forwarding to the States. Also, the Confederation should not be annulled with “so little scruple or formality.”

XXI. The ratifications of the Conventions of (“Nine,” added 31 Aug.) States shall be sufficient for organizing this Constitution (Added 31 Aug. "between the said States”).

XXII. This Constitution shall be laid before the United States in Congress assembled, (“for their approbation;” was struck 31 Aug.) and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen, under the recommendation of its legislature, in order to receive the ratification of such.

Alexander Hamilton agreed; the approbation of Congress was necessary to the transition. He proposed to combine Articles 21 & 22 and ask State Legislatures to submit the Constitution to ratifying conventions, and go into effect on the ratification of nine States.

Nathaniel Gorham predicted failure. Some will require unanimity, and conditional ratifications will defeat the Constitution.

Alexander Hamilton did not think that nine ratifying States would refuse to implement the Constitution.

Thomas Fitzsimmons (PA) reminded the Convention that “for their approbation,” was removed to relieve Congress from having to pass an act inconsistent with the Articles of Confederation.

(Governor Edmund Randolph next expressed his opposition to what became of the framework of government he proposed only three months ago.)

Edmund Randolph no longer supported the amended plan. Republican principles had been discarded. Amendments to the Constitution by the States should be submitted for consideration by another Convention. (Patrick Henry would join Mr. Randolph’s opposition on this point at the VA Ratifying Convention.)

James Wilson was against reconsideration.

Rufus King thought the best course was to submit the plan without asking for either approval or disapproval.

Elbridge Gerry thought the cavalier attitude/approach to ditching the Articles of Confederation was indecent. If nine States could do this to the Confederacy, why shouldn’t six of nine States be allowed to dissolve the new plan?

Roger Sherman supported Mr. King’s approach. Send the Constitution to Congress to forward to the States without recommendation. Nine States should be sufficient to put it into practice, yet he agreed with Mr. Hamilton that this should not be an Article of the Constitution.

On the question to reconsider Articles XXI & XXII, it passed 7-3-1.

Alexander Hamilton motioned and Elbridge Gerry seconded to postpone Article XXI in order to consider sending the Constitution to Congress, for their approval and subsequent forwarding to the States, where the people would elect delegates to Conventions for the purpose of ratification.

James Wilson forcefully disagreed with asking Congress for approval. Three State delegations at a minimum would oppose. Why make the assent of Congress necessary? Convention delegates spent four months of arduous labor crafting a government; why throw obstacles in the way of its success?

George Clymer (PA) thought Mr. Hamilton’s motion would embarrass Congress as much as the original Article.

Rufus King & Mr. Rutlidge agreed. Seeking approbation of Congress is the route to confusion and loss of their labors. With disapprobation, the States will logically not propose the plan to Conventions of the people’s delegates.

Mr. Hamilton’s motion to postpone, in order to take up his motion, it failed 10-1.

Article XXI was agreed to without opposition.

Alexander Hamilton withdrew the part of his motion that dealt with Article XXII.

Hugh Williamson and Elbridge Gerry moved to re-instate the words "for the approbation of Congress" in Article XXII which was disagreed to without opposition.

Edmund Randolph opposed the new plan for the following reasons:

The Senate was the Executive’s court of Impeachment; three quarters v. two thirds to override an Executive veto; too few members in the House of Reps; no natural limit on the size of standing armies; the necessary and proper clause; no restraint on navigation acts; the power to lay duties on exports; on the authority of the Legislature to interpose on the application of the Executives of the States; the want of boundary between State and National Legislatures as well as Judiciaries; Presidential power to pardon treason; want of limit to Congressional salaries.

So what should he do, support a plan he was convinced would lead to tyranny? He would not interfere with the collective judgment of the Convention but withheld his freedom to act accordingly should he become a delegate to the VA Ratifying Convention. He motioned to send the Constitution to Congress, thence to the State Legislatures, to popular State Conventions with power to adopt, reject, or amend and thence to another Convention for final ratification.

Benjamin Franklin seconded.

George Mason motioned and obtained to table Mr. Randolph’s points for a day or two to see if any of his objects would be met.

Charles Pinckney motioned that it be an instruction to the Committee for revising the style and arrangement of the articles agreed on, to prepare an Address to the People, to accompany the present Constitution, and to be laid with the same before the United States in Congress."

Mr. Pinckney’s motion carried without opposition.

Edmund Randolph motioned the Committee examine pardon of Treason. Agreed to without opposition.

Adjourned.

Constitutional Convention Ping!

A question revisited today, how best to deal with the delicate situation of submitting a new form of government through the old government? Was it even reasonable to ask for approbation of the Confederation Congress to a replacement plan of government?

To Elbridge Gerry, who would not sign the Constitution, and later opposed ratification in Massachusetts, it was essential the Constitution receive a positive endorsement from Congress before transference to the States. Mr. Gerry was livid at the apparent ease with which the Articles of Confederation were to be annulled.

To James Wilson, Rufus King and John Rutlidge, to require the good opinion of all thirteen States represented in Congress was to ensure defeat. Recall a few years prior, when RI alone defeated an amendment to the Articles granting Congress urgently needed revenue raising impost powers.

As we know, the clause was approved and added to the cover letter that accompanied the Constitution. The Convention would submit the Constitution to Congress, not ask for its approbation, but request it be forwarded to State ratifying conventions of the people’s representatives.

So far, so good, but there was no guarantee Congress would pass it to the States. When the Constitution left Philadelphia, it’s fate was up to Congress and the States. A Congress that regularly lacked a quorum to do business was no sure avenue for ratification. Even with a quorum, what was to prevent Congress from wrecking the summer’s work by simply tabling, and defeat the Constitution stillborn? Congress passed it to the States because members perceived general dissatisfaction with the Confederation, which was expressed in the calling of the Convention itself.

Once in the States, legislation had to be passed to arrange for elections of representatives to ratifying Conventions. None of this was assured, and when it happened, it only meant the Constitution had to stand up to withering examination and criticism.

Initial concerns over Legality were swept aside as the Constitution was saved through a direct appeal to the sovereign people.

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