Making the Constitution, Part I

Throwing out the Articles of Confederation

By Dave Kopel of the Independence Institute

9/25/00 5:15 p.m., National Review Online

You might have spent the summer in a bikini on Jones Beach (or near a bikini on Jones Beach), but 211 years ago a group of men clad in breeches and tunics locked themselves in a stuffy room in Philadelphia for the summer. They began by addressing the Articles of Confederation, which they quickly threw out on their way to drafting the Constitution of the United States.

This article begins a five-part series for NRO (click here for Part II, Part III, Part IV, Part V), where we will take a day-by-day look at the actions and decisions of the members of the Constitutional Convention during the summer of 1787.

May 14: Although the Convention was supposed to begin in Philadelphia on May 14, only one sixth of the thirteen state delegations had arrived.

May 25: With every state's delegation finally assembled, the Convention opened. The delegates unanimously elected George Washington chairman, after Benjamin Franklin, the only other contender, stepped aside.

Under the Articles of Confederation, each state had one vote in the national Congress. The Delaware delegation announced that the Delaware Legislature had forbade the delegates to accept any change in the one-state/one-vote rule. That rule would soon become the most hotly-argued issue of the Convention.

May 28: The Convention adopted rules of procedure; while one delegate spoke, other delegates were forbidden to converse or read. Pierce Butler of South Carolina suggested — and the Convention agreed — that debate would be honest and productive if it were secret. Accordingly, the delegates forbade publication of anything spoken at the Convention.

May 29: Virginia's Edmund Randolph detailed the defects in the present Articles of Confederation:

1. Because Congress had no power to wage war, there was no security from foreign invasion.
2. The federal government was too weak to check quarrels between states, or put down rebellions. (The previous winter, Daniel Shays had led a band of debtor farmers in revolt against the government of Massachusetts.)
3. The United States might trade more advantageously with foreign nations if the states were commercially united.
4. The states were superior to the federal government.

May 30: The delegates agreed that the new national government should have three different branches: Legislative, Executive, and Judiciary. Almost without discussion, the Convention assumed that it would completely throw out the Articles of the Confederation, instead of merely revising them as Congress had requested.

James Madison then moved that in the new Legislature, states should have representatives in proportion to their population. George Read, the president of Delaware, warned that Delaware would walk out of the Convention rather than accept a change in the one-state/one-vote principle.

May 31: It was quickly agreed that the national Legislature ought to have two houses. The issue then arose as to whether the members of first house of the national Legislature ought to be elected by the people. Connecticut's Roger Sherman argued that state legislatures should choose the members of the national Legislature. Elbridge Gerry of Massachusetts agreed, for the people were "dupes of pretended patriots."

George Mason of Virginia, however, urged that the first house (the future House of Representatives) "be the grand depository of the democratic principle of the Government," and be able to "know and sympathise with every part of the community." Other delegates concurred that the government would be stronger if it were popularly elected, with a broad base of support.

The convention could not agree about how to choose members of the second house (the Senate). Some state delegations favored popular election; others preferred election by the state legislatures.

June 1: The delegates argued about whether the Executive branch should consist of one person, or three. Many delegates thought the King of England showed that having one executive was the most successful scheme. Virginia's Randolph disagreed, pointing out that conditions in America were very different from those in England. He feared that a single Executive might turn into a monarch.

James Madison changed the topic to how the Executive would be chosen. In a close vote, the state delegations determined that the Executive would serve for one term of seven years, and could not serve twice.

June 2: Benjamin Franklin urged that the Executive not be paid a salary. If men could realize "the love of power, and the love of money," in one job, the struggle to obtain that job would become too tempestuous.

Pierce Butler of South Carolina warned that a three-man Executive would not be able to act coherently in military matters; each of the three executives would insist that the army protect his own region of the country.

June 4: After noting that the state governments all had a one-man executive, the Convention voted for a single Executive.

Debate began on whether the Executive should have an absolute veto on acts of the Legislature. In Pennsylvania, explained Dr. Franklin, the governor used his veto power to extort money, refusing to sign any beneficial bill unless given some bribe. Roger Sherman doubted that one man would be wiser than the whole Legislature. The states unanimously agreed not to the give the Executive an absolute veto. Instead, 2/3 of the Legislature could vote to override a veto.

June 5: The Convention discussed how federal judges would be chosen. While most delegates wanted either the Legislature or the Executive to choose, Dr. Franklin proposed the Scottish system. There, lawyers chose judges; by choosing a good lawyer to be a judge the other lawyers removed a powerful competitor. Accordingly, the Scottish lawyers always picked excellent judges.

The Convention quickly agreed that the federal judges should hold office for life, and receive a salary that could not be diminished. This was to ensure that the judiciary would be independent and temperate. The delegates remembered how their old enemy King George had cut off the salaries of colonial judges who thwarted his will.

Some delegates believed that the federal judiciary should be only a single Supreme Court. Others favored another layer of federal courts, below the Supreme Court. The second plan was adopted, so that the lower federal courts could hear matters dealing with international issues (such as admiralty), and could put a check on abuses in the state courts.

June 7: After extensive debate, all thirteen state delegations agreed that the second house of the Legislature (the Senate), ought to be chosen by the state legislatures. Election of senators by the state legislatures would provide a check against the radical impulses of the people, and would also give the states some leverage over the national government.

June 8: Pinckney of South Carolina and Madison of Virginia urged that the national Legislature be able to abolish any state laws it thought improper. They believed that a Legislature without this power could not be a truly national one. But other delegates feared national interference in local state issues, and the motion narrowly failed.

June 9: Although the Convention had determined how each house of the Legislature would be chosen, they had not decided how many representatives each state would elect. Georgia insisted that each state have an equal vote. Otherwise, the three most populous states — Virginia, Pennsylvania, and Massachusetts — would always have their way. James Wilson of Pennsylvania replied that all authority derives from the people, and therefore representatives ought to be elected in proportion to the number of people.

June 11: Pierce Butler, from South Carolina, urged that since money was power, states should have representatives in proportion to the taxes on their wealth.

June 12: The Convention agreed that once the new Constitution was adopted, it should be ratified by the people directly, rather than by the state Legislatures.

Turning again to the national Legislature, one delegate proposed that the first house (the House of Representatives) be elected every year, as was the practice for the New England state legislatures. Madison, however, preferred elections every three years, since annual elections promoted instability, and discouraged good men from serving.

As for the second branch (the Senate, which would be chosen by the state Legislatures), Madison favored a seven-year term; he wanted the Senate to be strong and firm enough to check the excesses of the House of Representatives.

Making the Constitution
Part I, Part II, Part III, Part IV, Part V.

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