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Chapter 2:

  • The convention of 1787
  • -- diversity of opinion -- Luther Martin's account of the three parties -- the question of representation -- Compromise effected -- Randolph's resolutions -- the word “national” condemned -- plan of Government framed -- difficulty with regard to ratification, and its solution -- provision for secession from the Union -- views of Gerry and Madison -- false Interpretations -- close of the convention.

When the convention met in Philadelphia in May, 1787, it soon became evident that the work before it would take a wider range and involve more radical changes in the “Federal Constitution” than had at first been contemplated. Under the Articles of Confederation the general government was obliged to rely upon the governments of the several states for the execution of its enactments. Except its own officers and employees, and in time of war the federal army and navy, it could exercise no control upon individual citizens. With regard to the states, no compulsory or coercive measures could be employed to enforce its authority, in case of opposition or indifference to its exercise. This last was a feature of the confederation which it was not desirable nor possible to change, and no objection was made to it; it was generally admitted, however, that some machinery should be devised to enable the general government to exercise its legitimate functions by means of a mandatory authority operating directly upon the individual citizens within the limits of its constitutional powers. The necessity for such provision was undisputed.

Beyond the common ground of a recognition of this necessity, there was a wide diversity of opinion among the members of the Convention. Luther Martin, a delegate from Maryland, in an account of its proceedings afterward given to the legislature of that state, classifies these differences as constituting three parties in the convention, which he describes as follows:

One party, whose object and wish it was to abolish and annihilate all State governments, and to bring forward one General Government over this extensive continent of a monarchical nature, under certain restrictions and limitations. Those who openly avowed this sentiment were, it is true, but few; yet it is equally true that there was a considerable number, who did not openly avow it, who were, by myself and many others of the Convention, considered as being in reality favorers of that sentiment. . . .

The second party was not for the abolition of the State governments nor for the [83] introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence in the government over the other States.

A third party was what I considered truly federal and republican. This party was nearly equal in number with the other two, and was composed of the delegates from Connecticut, New York, New Jersey, Delaware, and in part from Maryland; also of some individuals from other representations. This party were for proceeding upon terms of federal equality: they were for taking our present federal system as the basis of their proceedings, and, as far as experience had shown that other powers were necessary to the Federal Government, to give those powers. They considered this the object for which they were sent by their States, and what their States expected from them.

In his account of the second party above described Martin refers to those representatives of the larger states who wished to establish a numerical basis of representation in the Congress, instead of the equal representation of the states (whether large or small) which existed under the Articles of Confederation. There was naturally much dissatisfaction on the part of the greater states—Virginia, Pennsylvania, North Carolina, and Massachusetts—whose population at that period exceeded that of all the others combined, but which, in the Congress, constituted less than one third of the voting strength. On the other hand, the smaller states were tenacious of their equality in the Union. Of the very smallest, one, as we have seen, had sent no representatives to the convention, and the other had instructed her delegates, unconditionally, to insist upon the maintenance of absolute equality in the Congress. This difference gave more trouble than any other question that came before the convention, and for some time threatened to prove irreconcilable and to hinder any final agreement. It was ultimately settled by a compromise. Provision was made for the representation of the people of the states in one branch of the federal legislature (the House of Representatives) in proportion to their numbers; in the other branch (the Senate), for the equal representation of the states as such. The perpetuity of this equality was furthermore guaranteed by a stipulation that no state should ever be deprived of its equal suffrage in the Senate without its own consent.1 This compromise required no sacrifice of principle on either side, and no provision of the Constitution has in practice proved more entirely satisfactory.

It is not necessary, and would be beyond the scope of this work, to undertake to give a history of the proceedings of the convention of 1787. That may be obtained from other sources. All that is requisite for the [84] present purpose is to notice a few particulars of special significance or relevancy to the subject of inquiry.

Early in the session of the convention a series of resolutions was introduced by Edmund Randolph of Virginia, embodying a proposed plan of government, which were considered in committee of the whole House, and formed the basis of a protracted discussion. The first of these resolutions, as amended before a vote was taken, was in these words:

Resolved, That it is the opinion of this committee that a national Government ought to be established, consisting of a supreme legislative, executive, and judiciary.

This was followed by other resolutions—twenty-three in all, as adopted and reported by the committee—in which the word “national” occurred twenty-six times.

The day after the report of the committee was made, Ellsworth of Connecticut moved to strike out the words “national Government” in the resolution above quoted, and to insert the words “Government of the United States,” which he said was the proper title. “He wished also the plan to go forth as an amendment of the Articles of Confederation.”2 That is to say, he wished to avoid even the appearance of undertaking to form a new government, instead of reforming the old one, which was the proper object of the convention. This motion was agreed to without opposition, and, as a consequence, the word “national” was stricken out wherever it occurred, and nowhere makes its appearance in the Constitution finally adopted. The prompt rejection, after introduction, of this word “national,” is obviously much more expressive of the intent and purpose of the authors of the Constitution than its mere absence from the Constitution would have been. It is a clear indication that they did not mean to give any countenance to the idea which, “scotched, not killed,” has again reared its mischievous crest in these latter days—that the government which they organized was a consolidated nationality, instead of a confederacy of sovereign members.

Continuing their great work of revision and reorganization, the convention proceeded to construct the framework of a government for the confederacy, strictly confined to certain specified and limited powers, but complete in all its parts, legislative, executive, and judicial, and provided [85] with the means for discharging all its functions without interfering with the “sovereignty, freedom, and independence” of the constituent states.

All this might have been done without going beyond the limits of their commission “to revise the Articles of Confederation,” and to consider and report such “alterations and provisions” as might seem necessary to “render the Federal Constitution adequate to the exigencies of government and the preservation of the Union.” A serious difficulty, however, was foreseen. The thirteenth and last of the aforesaid articles had this provision, which has already been referred to: “The Articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetuated; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State.”

It is obvious, from an examination of the records, as has already been shown, that the original idea in calling a convention was that their recommendations should take the course prescribed by this article—first, a report to the Congress, and then, if approved by that body, a submission to the various legislatures for final action. There was no reason to apprehend the nonconcurrence of Congress, in which a mere majority would determine the question; but the consent of the legislatures of “every State” was requisite in order to final ratification, and there was serious reason to fear that this consent could not be obtained. Rhode Island, as we have seen, had declined to send any representatives to the convention; of the three delegates from New York, two had withdrawn; other indications of dissatisfaction had appeared. In case of the failure of a single legislature to ratify, the labors of the convention would go for naught, under a strict adherence to the letter of the article above cited. The danger of a total frustration of their efforts was imminent.

In this emergency the convention took the responsibility of transcending the limits of their instructions, and recommending a procedure which was in direct contravention of the letter of the Articles of Confederation. This was the introduction of a provision into the new Constitution, that the ratification of nine States should be sufficient for its establishment among themselves. In order to validate this provision, it was necessary to refer it to authority higher than that of Congress and the state legislatures—that is, to the people of the states, assembled by their representatives in convention. Hence it was provided, by the seventh and last article of the new Constitution, that “the ratification of the Conventions of nine States” should suffice for its establishment “between the States so ratifying the same.” [86]

There was another reason, of a more general and perhaps more controlling character, for this reference to conventions for ratification, even if entire unanimity of the state legislatures could have been expected. Under the American theory of republican government, conventions of the people, duly elected and accredited as such, are invested with the plenary power inherent in the people of an organized and independent community, assembled in mass. In other words, they represent and exercise what is properly the sovereignty of the people. State legislatures, with restricted powers, do not possess or represent sovereignty. Still less does the Congress of a union or confederacy of states, which is by two degrees removed from the seat of sovereignty. We sometimes read or hear of “delegated sovereignty,” “divided sovereignty,” with other loose expressions of the same sort; no such thing as a division or delegation of sovereignty is possible.

In order, therefore, to supersede the restraining article above cited and to give the highest validity to the compact for the delegation of important powers and functions of government to a common agent, an authoity above that of the state legislatures was necessary. Mr. Madison, in the Federalist,3 says: “It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification.” This objection would of course have applied with greater force to the proposed Constitution, which provided for additional grants of power from the states, and the conferring of larger and more varied powers upon a general government, which was to act upon individuals instead of states, if the question of its confirmation had been submitted merely to the several state legislatures. Hence the obvious propriety of referring it to the respective people of the states in their sovereign capacity, as provided in the final article of the Constitution.

In this article provision was deliberately made for the secession (if necessary) of a part of the states from a union which, when formed, had been declared “perpetual,” and its terms and articles to be “inviolably observed by every State.”

Opposition was made to the provision on this very ground—that it was virtually a dissolution of the Union, and that it would furnish a precedent for future secessions. Gerry, a distinguished member from Massachusetts—afterward Vice-President of the United States—said, “If nine out of thirteen (States) can dissolve the compact, six out of nine will be just as able to dissolve the future one hereafter.” [87]

Madison, who was one of the leading members of the convention, advocating afterward in the Federalist the adoption of the new Constitution, asks the question, “On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?” He answers this question “by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrifiecd.” He proceeds, however, to give other grounds of justification:

It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.

Madison's idea of the propriety of veiling any statement of the right of secession until the occasion arises for its exercise, whether right or wrong in itself, is eminently suggestive as explanatory of the caution exhibited by other statesmen of that period, as well as himself, with regard to that “delicate truth.”

The only possible alternative to the view here taken of the seventh article of the Constitution, as a provision for the secession of any nine states, which might think proper to avail themselves of it, from union with such as should refuse to do so, and the formation of an amended or “more perfect union” with one another, is to regard it as a provision for the continuance of the old Union, or Confederation, under altered conditions, by the majority which should accede to them, with a recognition of the right of the recusant minority to withdraw, secede, or stand aloof. The idea of compelling any state or states to enter into or to continue in union with the others by coercion, is as absolutely excluded under the one supposition as under the other—with reference to one state or a minority of states, as well as with regard to a majority. The article declares that “the ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution”—not between all, [88] but—“between the States so ratifying the same.” It is submitted whether a fuller justification of this right of the nine states to form a new government is not found in the fact of the sovereignty in each of them, making them “a law unto themselves,” and therefore the final judge of what the necessities of each community demand.

Here—although, perhaps, in advance of its proper place in the argument—the attention of the reader may be directed to the refutation, afforded by this article of the Constitution, of that astonishing fiction which has been put forward by some distinguished writers of later date, that the Constitution was established by the people of the United States “in the aggregate.” If such had been the case, the will of a majority, duly ascertained and expressed, would have been binding upon the minority. No such idea existed in its formation. It was not even established by the states in the aggregate, nor was it proposed that it should be. It was submitted for the acceptance of each separately, the time and place at their own option, so that the dates of ratification did extend from December 7, 1787, to May 29, 1790. The long period required for these ratifications makes manifest the absurdity of the assertion, that it was a decision by the votes of one people, or one community, in which a majority of the votes cast determined the result.

We have seen that the delegates to the convention of 1787 were chosen by the several states, as states— it is hardly necessary to add that they voted in the convention, as in the federal Congress, by states—each state casting one vote. We have seen, also, that they were sent for the “sole and express purpose” of revising the Articles of Confederation and devising means for rendering the federal Constitution “adequate to the exigencies of government and the preservation of the Union”; that the terms “Union,” “United States,” “Federal Constitution,” and “Constitution of the Federal Government,” were applied to the old confederation in precisely the same sense in which they are used under the new; that the proposition to constitute a “national” government was distinctly rejected by the convention; that the right of any state, or states, to withdraw from union with the others was practically exemplified, and that the idea of coercion of a state, or compulsory measures, was distinctly excluded under any construction that can be put upon the action of the convention.

To the original copy of the Constitution, as set forth by its framers for the consideration and final action of the people of the states, were attached the following words:

Done in Convention, by the unanimous consent of the States present, the [89] seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth. In witness whereof, we have hereunto subscribed our names.

[Followed by the signatures of “George Washington, President, and deputy from Virginia,” and the other delegates who signed it.]

This attachment to the instrument—a mere attestation of its authenticity, and of the fact that it had the unanimous consent of all the states then present by their deputies—not of all the deputies, for some of them refused to sign it—has been strangely construed by some commentators as if it were a part of the Constitution, and implied that it was “done,” in the sense of completion of the work.4

But the work was not done when the convention closed its labors and adjourned. It was scarcely begun. There was no validity or binding force whatever in what had been already “done.” It was still to be submitted to the states for approval or rejection. Even if a majority of eight out of thirteen states had ratified it, the refusal of the ninth would have rendered it null and void. Madison, who was one of the most distinguished of its authors and signers, writing after it was completed and signed, but before it was ratified, said: “It is time now to recollect that the powers [of the Convention] were merely advisory and recommendatory; that they were so meant by the States, and so understood by the Convention; and that the later have accordingly planned and proposed a Constitution, which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”5

The mode and terms in which this approval was expressed will be considered in the next chapter.

1 Constitution, Article V.

2 See Elliott's Debates, Vol. V, p. 214. This reference is taken from The Republic of Republics, Part III, Chapter VII, p. 217. This learned, exhaustive, and admirable work, which contains a wealth of historical and political learning, will be freely used, by kind consent of the author, without the obligation of a repetition of special acknowledgment in every case. A like liberty will be taken with the late Dr. Bledsoe's masterly treatise on the right of secession, published in 1866, under the title, “Is Davis a Traitor? or, Was Secession a Constitutional Right?”

3 No. Xliii.

4 See Republic of Republics, Part II, Chapters XIII and XIV.

5 Federalist, No. Xl.

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