The Need for A Convention

As America’s economic and military weaknesses became apparent, especially after Shays’ Rebellion, conversations about changes to the Articles became more frequent and public. After the failed Annapolis Convention of 1786, where eight states didn’t even participate, a Constitutional Convention was scheduled for May 14^th the following year.

All of the delegates came to the convention determined to restructure the Articles of Confederation. Few, however, had considered the possibility of abandoning the Articles completely and setting up an entirely different type of national government.

The Virginia and Pennsylvania convention delegates were the only ones to arrive by May 14^th, with the necessary additional delegates arriving in time to begin the convention on May 25^th. This gave the Virginia delegation time to consider a proposed agenda for the convention, which became known as The Virginia Plan. After two months of debates the resolves had grown to 23 and included 41 specific issues to be addressed by the delegates.

Table 1 lists these 41 issues and the resulting decisions of the convention delegates.

Accepted	1	Adopt a system, which will provide for the “common defense, security of liberty and general welfare.”
Rejected	2	The number of representatives for each state shall be proportioned according to the “quotas of contributions” (taxes) paid;
Accepted	3	The number of representatives for each state shall be proportioned according to the number of free inhabitants.
Accepted	4	The Congress shall consist of two houses.
Accepted	5	The people of the several states shall elect members of the House of Representatives.
Accepted	6	House members are prohibited from holding any state or federal office while serving in the national legislature.
Rejected	7	House members shall be ineligible for reelection for a stipulated number of years after serving one term.
Accepted	8	House members shall be paid “liberal stipends” for their services.
Rejected	9	House members shall be subject to recall.
Rejected	10	The House of Representatives shall elect Senators.
Rejected	11	Senators shall be selected by the House of Representatives from lists of nominees furnished by the state legislatures.
Accepted	12	Senators shall be prohibited from holding any federal or state office while serving in the Senate.
Accepted	13	Senators shall hold a term longer than the Representatives.
Rejected	14	Each Senator shall also be prohibited from holding any office for a designated number of years following his term as Senator.
Accepted	15	Senators shall receive “liberal stipends” for their services.
Accepted	16	The Congress shall legislate in all cases where it would interrupt the harmony of the states if they acted individually.
Accepted	17	The Congress shall legislate in all cases where the states would be incompetent to act.
Accepted	18	Each branch of the Congress shall be permitted to initiate acts for legislative consideration.
Rejected	19	The Congress shall have the authority to nullify any state legislation, which is considered to be unconstitutional.
Rejected	20	The Congress can call out the federal troops against any state that does not fulfill its duties.
Rejected	21	The Congress shall choose a President.
Accepted	22	The President shall administer all of the executive authority previously assigned to Congress.
50/50	23	The President and several designated judges shall review all legislation as a “Council of Revision.” The Council shall have a veto power over any objectionable legislation.
Accepted	24	The legislature may override the veto by a second vote.
Accepted	25	The President shall receive a fixed compensation, which cannot be increased or decreased during his term of office.
Rejected	26	The President shall be ineligible to serve a second time.
Accepted	27	A national judiciary shall be established with one or more supreme tribunals and such lesser tribunals as the legislature may think necessary.
Accepted	28	Jurisdiction of the national courts shall include piracies, felonies on the high seas, captured prisoners, cases in which foreigners or citizens of other states may be involved, cases involving federal taxes, or cases which may involve “the national peace and harmony.”
Accepted	29	Cases shall be initiated in the lower courts, and the Supreme Court shall hear cases on appeal.
Rejected	30	The national courts shall handle cases of impeachment.
Accepted	31	Judges in the national courts shall hold office “during good behavior” for life.
Rejected	32	Each judge shall receive compensation, which shall not be increased during his term of office.
Accepted	33	Each judge shall receive compensation, which shall not be decreased during his term of office.
Accepted	34	The national government will guarantee that each state shall maintain a republican form of government.
Accepted	35	All officers of each state shall be required to take an oath to uphold and support the new Constitution.
Accepted	36	New states shall be admitted to the Union with the approval of Congress, but the vote need not be unanimous.
Accepted	37	The authority of the Congress under the Articles of Confederation shall continue in power until a designated date following the reform of the Articles of the Union.
Accepted	38	A provision for the amending of the new constitution should be included.
50/50	39	The assent of the Congress should not be required in the amendment process.
Accepted	40	The proposals for the new Constitution shall be submitted to Congress for its approval.
Accepted	41	The new Constitution will then be submitted to conventions in the states, which are “to be expressly chosen by the people.”

Rules of the Convention

Due to the disparity of views and strong opinions among the convention delegates, key rules were employed by the convention to encourage extensive discussion, including:

1. The proceedings were to be conducted in secret. This was to prevent rumors or misinformation from spreading across the country during the convention.
2. In order to avoid personal attacks toward fellow delegates, all remarks were to be addressed to the convention president and not directly to any member of the convention.
3. Everyone was expected to pay strict attention to other speakers. There was to be no reading or side discussions while others were speaking.
4. Each state was to be allowed one vote, and a majority of the delegates from their state had to be present and in agreement in order to have its vote counted.
5. At any time during the proceedings, a straw poll could be taken to see where the individual delegates stood, but none of these votes were to be recorded in order to more easily afford delegates the ability to change their minds without embarrassment or recrimination.
6. Each delegate was allowed to only speak twice on any issue until after everyone else had been given an opportunity–and even then it required special permission from the other delegates to speak more than twice.

With these efforts to promote discussion the delegation often seemed to make progress only to move backward in their debates. Finally, on June 15^th, New Jersey presented their “plan” which then prompted Alexander Hamilton to present an entirely new plan of his own—it appeared the delegates were back to square one.

Table 2 shows a comparison between the basic configurations of government from each plan.

Virginia Plan	New Jersey Plan	Hamilton Plan
Two branches for the legislature	A single legislative body	Two branches for the legislature
The legislative powers derived from the people	Legislative powers derived from the states	The legislative powers derived from the people
Lower House elected by people and Upper House elected by Lower House		Lower House elected by people and Upper House elected by Electors chosen by people
State governor selection left to the states	State governor selection left to the states	State governors appointed by national legislature
A majority of the legislature can act	A small minority can control the legislature	National veto power over any state legislation
A single executive	More than one executive	Single executive (with life-term of services)
Remove the executive by impeachment	Remove the President by a majority of the states	No removal and absolute veto of legislation
Allow the establishment of inferior federal courts	Judiciary appointed by executive	Judiciary with life-terms of service

From June 15^th to July 26^th much debate was made around the three plans before the principle issues had been sufficiently settled to put the proposed Constitution into rough form. From August 6th to September 8^th the Convention worked to refine the details needed for a final vote and signing. On September 17, 1787, 41 of the original 55 delegates met in Independence Hall to sign the Constitution.

There were a few delegates who were still unsatisfied with the final document who declined to sign, but since each state was represented on the signed document it was recorded as having unanimous consent of all the states.

The three delegates who did not sign agreed in concern over the absence of a Bill of Rights. These three delegates were George Mason and Governor Edmund Randolph of Virginia, and Elbridge Gerry of Massachusetts. These three were later know as Anti-Federalists (those supporting the Constitution in its original form were known as Federalists) and their recorded objections are listed following the next section on the Constitution’s ratification.

Ratifying the Constitution After the Convention

The first test of the new Constitution was its passage by Congress—which occurred after only eight days of hearings and was done without making any changes to it. The public however reacted with alarm and accusations of conspiracy. They had been led to expect some amendments to the Articles of Confederation strengthening the ability to collect revenues and organize a federal military.

Instead what was presented was a “three-headed monstrosity,” which was entirely new to any previous or existing government. In Virginia the reaction was even stronger when its citizens discovered that neither George Mason nor Governor Randolph had signed the document.

As each state needed to hold a ratification convention, public debate was vigorous and centered on the American ideals of individual liberty and states rights. These debates were key in educating the public on the form of government proposed and exposing weaknesses either overlooked or considered unimportant by many of the convention delegates.

The unwillingness of the public to relent on this issue led George Washington and others to promise the states that if they would approve the Constitution in its existing form, Congress would review and vote on any and all amendments proposed by the states.

The states agreed and collectively submitted a staggering 189 changes. James Madison reduced the number to 17 amendments, of which Congress approved 12 and 10 were passed by the states. Without this debate and insistence by the public and the states, and George Washington’s leadership, we would be without the Bill of Rights.

Original Record of Opponents During and After the Convention

Edmund Randolph, Elbridge Gerry, and George Mason were the “original” Anti-Federalists (a name given to those who opposed ratification of the Constitution). They were later joined by other well known patriots such as Patrick Henry. For those curious about the debates between the Federalists (those supporting ratification of the Constitution) and the Anti-Federalists, here is a link to a timeline of Federalist-AntiFederalists debates with the recorded debates.

Edmund Randolph’s Objections, September 10, 1787

 

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 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.

Elbridge Gerry’s Objections to the Constitution, October 18, 1787

My principal objections to the plan, are that there is no adequate provision for a representation of the People—that they have no security for the right of election—that some of the powers of the Legislature are ambiguous, & others indefinite & dangerous—that the executive is blended with & will have an undue influence over the legislature—that the Judicial department will be oppressive—that treaties of the highest importance may be formed by the president with the advice of two thirds of a quorum of the Senate—& that the System is without the Security of a Bill of rights, these are objections which are not local, but apply equally to all the States—

As the Convention was called for “the sole & express purpose of revising the articles of confederation, & reporting to Congress & the several Legislatures such alterations & provisions as shall render the federal constitution adequate to the exigencies of Government, & the preservation of the union,” I did not conceive that these powers extended to the formation of the plan proposed, but the Convention being of a different opinion, I acquiesced in it, being fully convinced that to preserve the union, an efficient Government was indispensably necessary; & that it would be difficult to make proper amendments to the articles of confederation.

The Constitution proposed has few, if any federal features, but is rather a system of national government: nevertheless, in many respects I think it has great merit, & by proper amendments, may be adapted to the “exigencies of Government” & preservation of Liberty.

The question on this plan involves others of the highest importance. 1st Whether there shall be a dissolution of the federal Government? 2dly Whether the several State Governments shall be so altered, as in effect to be dissolved? And 3dly Whether in lieu of the federal & state Governments, the national constitution now proposed shall be substituted without amendment? Never perhaps were a people called on to decide a question of greater magnitude—should the Citizens of America adopt the plan as it now stands, their liberties may be lost: or should they reject it altogether Anarchy may ensue. It is evident therefore that they should not be precipitate in their decisions; that the subject should be well understood, lest they should refuse to support the Government, after having hastily accepted it.

George Mason’s Objections to the Constitution, October 1787

There is no declaration of rights; and, the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights in the separate states are no security. Nor are the people secured even in the enjoyment of the benefit of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several states.

In the House of Representatives there is not the substance, but the shadow only, of representation, which can never produce proper information in the legislature, or inspire confidence in the people. The laws will, therefore, be generally made by men little concerned in, and unacquainted with, their effects and consequences.

The Senate have the power of altering all money bills, and of originating appropriations of money, and the salaries of the officers of their own appointment, in conjunction with the President of the United States, although they are not the representatives of the people, or amenable to them. These, with their other great powers, (viz., their powers in the appointment of ambassadors, and all public officers, in making treaties, and in trying all impeachments;) their influence upon, and connection with, the supreme executive from these causes; their duration of office; and their being a constant existing body, almost continually sitting, joined with their being one complete branch of the legislature, — will destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.

The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the several states; thereby rendering laws as tedious, intricate, and expensive, and justice as unattainable, by a great part of the community, as in England; and enabling the rich to oppress and ruin the poor.

The President of the United States has no constitutional council, (a thing unknown in any safe and regular government.) He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate; or a council of state will grow out of the principal officers of the great departments — the worst and most dangerous of all ingredients for such a council, in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office. Whereas, had a constitutional council been formed (as was proposed) of six members, viz., two from the Eastern, two from the Middle, and two from the Southern States, to be appointed by vote of the states in the House of Representatives, with the same duration and rotation of office as the Senate, the executive would always have had safe and proper information and advice: the president of such a council might have acted as Vice-President of the United States, pro tempore, upon any vacancy or disability of the chief magistrate; and long-continued sessions of the Senate would in a great measure have been prevented. From this fatal defect of a constitutional council has arisen the improper power of the Senate in the appointment of the public officers, and the alarming dependence and connection between that branch of the legislature and the supreme executive. Hence, also, sprang that unnecessary officer, the Vice-President, who, for want of other employment, is made president of the Senate; thereby dangerously blending the executive and legislative powers, besides always giving to some one of the states an unnecessary and unjust preeminence over the others.

The President of the United States has the unrestrained power of granting pardon for treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt. By declaring all treaties supreme laws of the land, the executive and the Senate have, in many cases, an exclusive power of legislation, which might have been avoided, by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.

By requiring only a majority to make all commercial and navigation laws, the five Southern States (whose produce and circumstances are totally different from those of the eight Northern and Eastern States) will be ruined; for such rigid and premature regulations may be made, as will enable the merchants of the Northern and Eastern States not only to demand an exorbitant freight, but to monopolize the purchase of the commodities, at their own price, for many years, to the great injury of the landed interest, and the impoverishment of the people; and the danger is the greater, as the gain on one side will be in proportion to the loss on the other. Whereas, requiring two thirds of the members present in both houses, would have produced mutual moderation, promoted the general interest, and removed an insuperable objection to the adoption of the government.

Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper; so that the state legislatures have no security for the powers now presumed to remain to them, or the people for their rights. There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in time of peace.

The state legislatures are restrained from laying export duties on their own produce; the general legislature is restrained from prohibiting the further importation of slaves for twenty-odd years, though such importations render the United States weaker, more vulnerable, and less capable of defense. Both the general legislature and the state legislatures are expressly prohibited making ex post facto laws, though there never was, nor can be, a legislature but must and will make such laws, when necessity and the public safety require them, which will hereafter be a breach of all the constitutions in the Union, and afford precedents for other innovations.

This government will commence in a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.