September 10, 1787: Amendments and Ratification

Edmund Randolph by Casimir Gregory Stapko after Flavius J. Fisher after the original by an unidentified artist, 1949

The Diplomatic Reception Rooms, U.S. Department of State, Washington, D.C., https://www.diplomaticrooms.state.gov/objects/portrait-of-edmund-randolph-2nd-secretary-of-state-under-president-george-washington/

“Was he to promote the establishment of a plan which he verily believed would end in tyranny?”

--James Madison's summation of Edmund Randolph's description of the bind he saw himself in

Monday, September 10, 1787: The Convention Today

The Convention began its final week with Gerry’s (MA) motion to reconsider the amending process, particularly that provision whereby the US Congress must call a convention to amend the Constitution by request of two-thirds of the state legislatures. He found this inappropriate, since the US Constitution was superior to the state constitutions.

Hamilton (NY) seconded, but for a different reason. He wanted the US Congress to also independently have the power to call for a national convention to consider amendments. Either way (whether the convention was called for by Congress or the state legislatures), all amendments would need to be ratified, which meant “the people would finally decide.”

Madison (VA) found the wording of the article too vague. “How was a Convention to be formed? — by what rule decide? — what the force of its acts?”

Wilson (PA) moved to require ratification of amendments by two-thirds of the states, which failed, 5–6. He then moved to require three-fourths, which passed unanimously.

Madison then moved to create a two-step amendment process.

1. Amendments could be created by either two-thirds of each house of the US Congress or by two-thirds of the state legislatures.
2. Amendments would need to be ratified by either three-fourths of the state legislatures or by specially called conventions in three-fourths of the states.

Hamilton seconded.

Rutledge (SC) objected that an amendment might theoretically end the slave trade prior to 1808. (In a complicated earlier compromise, the Convention agreed to allow Congress to only have the power to end the slave trade starting in the year 1808.) Language conciliating his objection was added to Madison’s proposed article, and the whole passed 9–1–1, Delaware opposed and New Hampshire divided.

Gerry then moved to reconsider the provisions for ratifying. He wanted to reinsert the requirement for Congress to approve the document. He objected to dissolving the Articles of Confederation with “so little scruple or formality.” Hamilton (NY) agreed with Gerry’s motion and also proposed that each state legislature should also vote on whether to accept ratification by only nine states.

Gorham thought Hamilton’s ratification plan was madness. “Some States will say that nine States shall be sufficient to establish the plan; others will require unanimity for the purpose, and the different and conditional ratifications will defeat the plan altogether.”

Hamilton thought all the ratifying states would also be content with effectuation upon ratification by nine states. The practical chances of ratification were the same in his plan, but there was less room for states less inclined to ratify to object to the mode of ratification.

Fitzsimmons (PA) observed that Congressional approval had been deleted to avoid the embarrassment of asking the Confederation Congress to violate its own charter.

Randolph (VA) stated if the Confederation Congress did not approve the Constitution before sending it to the states he would oppose the entire plan. He thought the Constitution had departed from republican principles and he proposed that the states’ ratification conventions be empowered to propose amendments that would be submitted to a second Constitutional Convention “with full power to settle the Constitution finally.” He knew this idea would lose, but he needed to propose it for his own peace of mind.

Wilson and King (MA) both disliked Gerry and Hamilton’s ratification proposals. Sherman (CT) endorsed the method proposed but wanted it taken out of the Constitution and placed in a transmittal letter.

Once the Gerry/Hamilton motion to reconsider ratification language passed, Wilson no longer held back. If the Convention asked for the Confederation Congress’s approval, one state would have the power to stop ratification. It would be “worse than folly, to rely on the concurrence of the Rhode Island members of Congress.” The same went for Maryland and New York’s members. After four months “in the laborious and arduous task of forming a Government for our country, we are ourselves, at the close, throwing insuperable obstacles in the way of its success.”

Clymer (PA), King, and Rutledge thought Gerry’s idea wouldn’t save the Confederation Congress from any embarrassment anyway.

Hamilton’s idea (each ratifying state could decide whether nine state ratifications were sufficient) failed 1–10, Connecticut approving. Gerry’s idea (the Confederation Congress needing to approve of the Constitution) failed unanimously.

Randolph now listed the reasons he would oppose the Constitution.

• The Senate shouldn’t try impeachments.
• Presidential vetoes should be overturned by two-thirds of each House of Congress, not three-fourths.
• Standing armies should be limited.
• The “necessary and proper” clause was too expansive.
• It was too easy to pass navigation acts.
• Taxes on exports shouldn’t be allowed.
• State executives shouldn’t be permitted to request Congress’s assistance in putting down insurrections.
• The boundaries between state and national legislative and judicial powers were too murky.
• The Presidential pardon power shouldn’t be unlimited.
• Congress shouldn’t be able to regulate its compensation.

He insisted again that the states should be able to call for a second convention as they considered ratification. Franklin (PA) seconded his motion.

Mason (VA) urged “that the motion should lie on the table for a day or two, to see what steps might be taken” to mollify Randolph’s objections.

Charles Pinckney (SC) moved for the Committee of Style to write “an address to the people, to accompany the present Constitution, and to be laid, with the same, before the United States in Congress.” The motion passed unanimously.

Synopsis

• The process for amending the Constitution was nailed down.
  • Two-thirds of each House of Congress, or two-thirds of the state legislatures, could propose amendments.
  • Three-quarters of the states would be needed to ratify amendments, either via their legislatures or specially called conventions.
  • No amendment banning the slave trade could pass prior to 1808.
• Gerry (MA) and Hamilton (NY) supported motions that would have had the (unintentional, in Hamilton’s case) effect of making it extraordinarily unlikely that the Constitution would be ratified. Their intention was to give the ratification process more legitimacy. The motions failed.
• Randolph (VA), extensively listing the reasons he thought the Constitution would lead to “tyranny,” proposed that the state ratification conventions be empowered to suggest amendments which would go before a second national constitutional convention.

Delegates Today

• The First Troop Philadelphia City Cavalry (now part of the Pennsylvania National Guard) requested permission to give a dinner for Washington (VA) at a convenient day. The General accepted and suggested September 15.
• Johnson (CT) met with the Committee of Style and then dined at City Tavern.
• In a brief note, Baldwin (GA) “presents his compliments to his Excellency the President [of Pennsylvania, Franklin (PA)] and will with pleasure wait on him at dinner on Wednesday.”
• McClurg (VA) wrote from Richmond to Madison (VA). The report of a tendency to insurrection in parts of Virginia had some basis. The state seemed disposed to accept the plan of the Convention, whatever it was.
• Robert Morris (PA) wrote to Constable Rucker and Co. about 191 hogsheads of tobacco and about having recorded mortgages he had sold on farms in Dutchess County, New York.

Philadelphia Today

• Today was clear and very warm—82°.
• Philadelphian Jacob Hiltzheimer “in the Afternoon attended at the State house when five engrossed Bills were signed by the Speaker, it was exceeding warm at the same time the wind being from the west which was no Benefit to the room upstairs.”