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. Gerrys 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. Randolphs 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 shouldnt six of nine States be allowed to dissolve the new plan?
Roger Sherman supported Mr. Kings 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. Hamiltons 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 peoples delegates.
Mr. Hamiltons 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 Executives 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. Randolphs 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. Pinckneys motion carried without opposition.
Edmund Randolph motioned the Committee examine pardon of Treason. Agreed to without opposition.
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 peoples representatives.
So far, so good, but there was no guarantee Congress would pass it to the States. When the Constitution left Philadelphia, its 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 summers 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.