FRAMING THE CONSTITUTION

1. FRAMING THE CONSTITUTION Topic #6

2. The Federal Convention • A resolution of the Confederal Congress (Feb. 1787) called for a • convention of delegates who shall have been appointed by the several states be held at Philadelphia • for the sole and express purpose of revising the Articles of Confederation, and • reporting to Congress and the several [state] legislatures such alterations and provisions therein as shall . . . render the [con]federal constitution adequate to the exigencies of Government & the preservation of the Union. • This led to the federal convention that actually proposed to scrap the A. of C. entirely and replace them with a new federal constitution based on different (federal) principles.

3. Delegates to the Federal Convention • The convention delegates [“framers of the Constitution”]: • All states except RI sent delegates. • 55 delegates attended the convention for at least some of its sessions [that extended over about 4 months]. • About 12-15 delegates played highly active roles at the convention. • 39 delegates signed the resolution transmitting the proposed constitution to Congress on September 17, 1787, • but 3 delegates present that day refused to sign. • Delegates included: Washington, Madison, Hamilton, Morris, Randolf, Paterson, Sherman, Wilson, Franklin • Adams and Jefferson, U.S ambassadors to Britain and France respectively, were not delegates.

4. Delegates to the Federal Convention (cont.) • Delegates were mostly “men of substance,” well educated and in many cases wealthy, most with extensive political experience. • Delegates were in considerable measure self-selected: • mostly “nationalists/continentalists” sought to become delegates, while • potential anti-federalists, opposed to a stronger central government, were confident that they could block an objectionable proposal at the ratification stage (which, under the A of C, required the assent of every state) and mostly opted out. • So the delegates were not a representative sample the population, or even of the politically active stratum.

5. The Virginia Delegation • Virginia had a heavy-weight delegation, numerically, intellectually, and politically. • James Madison [“father of the Constitution”] was the principal driving force in getting the convention underway and in pressing it to do its business. • Madison gave himself a seminar in political science preceding the convention and • wrote a “final paper” on The Vices of Political System of the U.S. [see Supplementary Documents] • The Virginia delegation caucused in advance and drew up a series of resolutions (referred to as the Virginia Plan) to introduce at the outset of the convention that • in effect called for the complete scrapping of the A. of C., and • outlined the essential features of a new much stronger central government.

6. The Federal Convention • The convention was scheduled to begin its work in May but didn’t achieve a quorum until the end of the month. • Early procedural decisions: • George Washington was elected presiding officer. • It would use of standard parliamentary procedure. • It would operate on the basis of one-state delegation one-vote, in the manner of the Articles of Confederation. • However (unlike the A. of C.), motions could be adopted on the basis of simple majority rule (7/12). • The proceedings would be kept secret [Independence Hall windows were sealed shut] to facilitate candid deliberation and compromise. • An official secretary/recorder was appointed, • but others, especially Madison, kept better records. • Madison’s authoritative Notes on the Federal Convention were not published until 50 years later. • The convention made extensive use of committees, in particular • resolving itself into a committee of the whole (to use more informal parliamentary procedures), and • appointing smaller committees delegated particular tasks.

7. The Virginia Plan The Virginia Plan was introduced by Edmund Randolph. 1. Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty and general welfare." 2. Resolved therefore that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants. 3. Resolved that the National Legislature ought to consist of two branches. 4. Resolved that the members of the first branch of the National Legislature ought to be elected by the people of the several States every _____ for the term of _____; . . . to be incapable of reelection for the space of _____ after the expiration of their term of service, and to be subject to recall. 5. Resolved that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures . . . .

8. The Virginia Plan (cont.) 6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof. 7. Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of _____ years, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation. 8. Resolved that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature… . 9. Resolved that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour.

9. The Virginia Plan (cont.) 13. Resolved that provision ought to be made for the amendment of the Articles of Union and that the assent of the National Legislature ought not to be required thereto. 14. Resolved that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union. 15. Resolved that [the recommendations of this convention] ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider & decide thereon. • In summary, the Virginia Plan proposed a radically stronger central government and generally a much more consolidated (though not fully unitary) union. • Moreover, it would be a union in which states would not have equal voting power; rather the (direct and indirect) voting power of states would be proportional to their population (or possibly wealth). • It would be ratified by a procedure different from the procedure prescribed in the Articles of Confederations for amendments to the Articles.

10. The New Jersey Plan • The “small-state” response was the New Jersey Plan: • 1. Resolved that the articles of Confederation ought to be so revised, corrected, and enlarged, as to render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union. • 2. Resolved that in addition to powers vested in the United States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all [imported] goods; . . . to pass Acts for the regulation of trade and commerce as well as with foreign nations as with each other. [But no change in the structure or selection of Congress.] • 3. Resolved that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the articles of Confederation [based on assessed value of lands], the United States in Congress be authorized to make such requisitions in proportion to the whole number of white and other free citizens and inhabitants of every age, sex, and condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes.

11. The New Jersey Plan (cont.) • 4. Resolved that the United States in Congress be authorized to elect a federal Executive to consist of _____ persons, to continue in office for the term of _____ years, . . .; to be ineligible a second time, and removable by Congress on application by a majority of Executives of the several States; that the Executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General, or in other capacity. • 5. Resolved that a federal Judiciary be established to consist of a supreme Tribunal the Judges of which to be appointed by the Executive, and to hold their offices during good behavior, that the Judiciary so established shall have the authority to hear and determine in the first instance on all impeachments of federal officers, and by the way of appeal in the dernier resort in all cases toughing the right of Ambassadors, in all cases of captures from an enemy, in all cases of piracies and felonies on the high seas, in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for regulation of trade, or the collection of the federal Revenue . . . .

12. The New Jersey Plan (cont.) 6. Resolved that all acts of the United States in Congress made by virtue and in pursuance of the powers hereby and by the articles of confederation vested in them, and all Treaties made and ratified under the authority of the United States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding; and that if any State, or any body of men in any State shall oppose or prevent the carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth the power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties. [This highlighted portion of this resolution evolved into the Supremacy Clause of the new Constitution.]

13. Constitutional Bargaining • The two Plans together defined the bargaining range facing the convention as it tried to draft a specific Constitution. • But there were two additional strategic considerations: • What could be ratified [“electability”]? [Remember: the convention would only make a proposal (that might be rejected in the ratification process).] • Failure of the convention to agree on a proposal would mean maintaining a status quo that almost all delegates considered highly unsatisfactory.

14. Compromises that Made the Constitution • The Legislative [or Great or Connecticut] Compromisewasworked out in a committee and then accepted by a majority of delegations [over Madison’s strong objections]. • A bicameral Congress: • Two coequal houses [with substantially equal powers]. • Legislation would require support of a concurrent majority. • In the House of Representatives, states have representation proportion to population [plus the NJ 3/5 compromise applied to representation as well as “quotas of contribution”/“direct taxes”], and • members are elected by the people [not by state legislatures] • in the manner in VA Plan (but no recall and no term limits). • In Senate, states are equally represented [this is what Madison stenuously objected to], and • members are elected by state legislatures • in manner of A. of C. and NJ Plan, • but with long fixed terms (but no recall or term limits).

15. Constitutional Compromises (cont.) • Compromise regarding the Powers of Congress • Congress was delegated powers beyond those granted by the A. of C. (or the NJ Plan) but they were enumerated and not as sweeping as under the VA Plan. • The principal added powers of Congress were • the power to lay and collect taxes to provide for the common defense and general welfare of the U.S. • the power regulate foreign and interstate commerce. • The power of Congress to veto laws of state legislatures found in the VA Plan was rejected [again over Madison’s strong objections]. It was replaced by • the requirement that state (as well as federal) officials take an oath to uphold the national constitution [from the VA Plan], and • the Supremacy Clause [from the NJ Plan].

16. Constitutional Compromises (cont.) • The Commerce Compromise. • Many Southern delegates feared that, if Congress had the power regulate foreign commerce, Northern majorities would use this power to pass “navigation acts” unfavorable to the South (perhaps prohibiting further importation of slaves). • They wanted want a stipulation that Congress could exercise its commerce power only with 2/3 votes in both houses. • Madison and others objected to such a supramajority requirement for ordinary legislation. • The Compromise [worked out in a committee]: Congress got the commerce power, with no supramajority requirement, but was prohibited from using it to restrict the slave trade for 20 years. • The Congress shall have power . . . to regulate commerce with foreign nations. . . . • The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to 1808 . . . .

17. Constitutional Compromises (cont.) • The Executive Compromise: a package of provisions pertaining the structure and powers of the Presidency, its mode of selection, term of office, and eligibility for re-election [worked out at the last moment by a committee]. • We will consider these provisions later in the course. • The Federal Compromise: the framers ended up inventing a new intermediate form of union, different from the confederal form, that we now call a federal system.

18. Summary: Pure Federal Diagram

19. Summary U.S. Federalism Diagram

20. Implications of a Federal System • In a federal system, everyone • votes in two types of elections (state and federal); • pays two types of taxes (state and federal); • is subject to two systems of law (state and federal) that are • enforced by two court systems (state and federal). • These and other provisions were melded into a coherent document: • A first draft was written by the Committee on Detail, soon after the Legislative Compromise was worked out. • The final draft was written by the Committee on Style and Arrangements. • Gouverneur Morris of PA was primarily responsible for drafting the final text of the Constitution.