With the Convention having decided on a Three Branch System of Government with Supreme power on May 30, 1787, attention was now turned toward the Legislature. The last order of business from the previous day was to postpone a motion by Edmund Randolph (Virginia) on proportional suffrage in the Legislature. The vote was postponed and referred to committee mainly due to the restriction placed upon the State of Delaware Delegation by its Legislature that the equal suffrage of the States shall not be modified (May 25, 1787). The fear being, that passing a resolution of proportional suffrage may cause the Delaware Delegation to leave the Convention entirely.
May 31st opens with a Eleventh State now represented, and taking its seat in the Convention.
- Georgia – William Pierce
At this point now, only New Hampshire and Rhode Island are not represented in the Convention, and Rhode Island has already decided against sending delegates at all. Also of note is in the Congress Assembled, two delegates from a state must be present for the vote of the State to be tallied, the Convention is willing to move forward with only one delegate to vote for the State they represent.
The make up of the Legislature
The Convention began in the Committee of the Whole, taking up the Virginia Plan’s third resolution for a bicameral legislature, “that the national legislature ought to consist of two branches”. Other than the dissent of Benjamin Franklin (Pennsylvania) who was partial to a unicameral house as was in use in his home state, the motion was agreed to nem con (without dissent). With this resolution the Convention has established a Bicameral Legislature.
Shall the First House of the Legislature be Elected by the People or appointed by the States.
The convention then moves on to the fourth resolution of the Virginia Plan,
“that the members of the first branch of the national legislature ought to be elected by the people of the several states,”
Immediately two opposing sides form on the issue for various reasons. James Madison (Virginia), George Mason (Virginia) and James Wilson (Pennsylvania) are in favor of the First Branch (what will become the House of Representatives) members being voted on by the people. Roger Sherman (Connecticut), Elbridge Gerry (Massachusetts) and Pierce Butler (South Carolina) were opposed to the people voting on the members of the first branch.
George Mason, favored elections to preserve democracy, and he noted “our own children in short order will be among the general mass”, comparing it to “our House of Commons”. He argued that the members should know and sympathize with the every part of the community and should be taken from it.
We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity and policy; considering that, however affluent their circumstances, or elevated their situations, might be, the course of a few years not only might, but certainly would, distribute their posterity throughout the lowest classes of society. Every selfish motive, therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest, than of the highest, order of citizens.
James Wilson was in agreement with Mason, to secure the public confidence and destroy the rivalry between the National and State Governments, “No government could long subsist without the confidence of the people”. Madison in turn agrees with Wilson’s assessment adding having the State Legislatures appoint the members would remove the Government to far from the people, and cites the Maryland Senate is removed by two levels between it and the people, and a delegate in this house would three levels removed, and more separation would ensue if this legislature was to then in turn make appointments3. “The people would be lost sight of altogether, and the necessary sympathy between them and their rulers and officers too little felt”.
On the other side of the election issue, Roger Sherman was opposed to the election by the people favoring appointment by State Legislatures. The people he said, “should have as little to do as may be about the government. They want information, and are constantly liable to be misled”. Elbridge Gerry also preferred appointment by State Legislature fearing the “evils we experience flow from the excess of democracy”. He felt the people do not want virtue, and are duped by pretend Patriots. Gerry used Massachusetts as an example of the people being misled,
that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute.
Gerry admits he had been too republican, and he still was but through experience had taught him the danger of the leveling spirit of it. Gerry also did not care for the comparison by George Mason to the House of Commons, insisting the nature of their Constitution and ours were too different to draw comparisons to. Butler believes it is impracticable to have the people elect the members of the First House.
Both opposing views wished for stability and confidence in the Government, but through differing methods. Those in favor of direct election by the people, feeling that without such elections the people would feel too separated from the government, and with feeling as having a vested interest in the government the people would have no confidence in it. Those opposed to general elections by the people as too much democracy, and wished for stability by having State Legislatures and not leave the election to a populous that can be misled, to ensure an untainted or more objective selection takes place.
Gerry in the end, had no objection to an election by the people, “if it were so qualified that men of honor and character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number, out of which the state legislatures should be bound to choose”.
The motion to have the First House elected by the people carries, Yea-6 (MA, NY, PA, VA, NC, GA); Nay-2 (NJ, SC) Split-2 (CT, DE).
With the passage of this Clause, the Convention has ensured the people will have direct participation in the new National government by The People Electing the First House. This particular resolution was for from finished in the Convention, as it will be re-examined numerous times in the future as well. But the basic notion and desire of having the people directly involved in government is evident by this early vote.
Legislature Qualifications
The Fourth Resolution of the Virginia plan regarding qualifications of the members of the National Legislature was postponed nem con, for being too much detail at this point.
Selection of Senators
The Committee of the whole then moved onto the Fifth Resolution of the Virginia Plan,
that the second branch of the national legislature ought to be chosen, by the first branch, out of persons nominated by the state legislatures.
The Notion of selecting the members of the Second Branch by the First Branch was far from a unanimous proposition. Richard Spaight (North Carolina), immediately asserts that the State Legislature ought to appoint the Second Branch, to which Pierce Butler agreed. Butler was apprehensive of removing so much power from the States, and that the proposition “tended to destroy all that balance and security of interests among the states which was necessary to be preserved”. Butler asked Edmund Randolph, “to explain the extend of his ideas, and particularly the number of members he meant to assign to this second branch”.
Randolph rose and answered Pierce Butler’s question, stating that the details were not part of the plan, and appropriate could not have been introduced. He did however go onto state the number of the second branch should be smaller than the first, small enough to exempt the from passionate proceedings that larger bodies may be liable to.
“…that the general object was to provide a cure for the evils under which the United States labored; that, in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy; that some check therefore was to be sought for against this tendency of our governments; and that a good Senate seemed most likely to answer the purpose”.
Edmund Randolph did not directly assert his contention for the second branch to be chosen by the first, but rather stated the goal was to make a “good” body, that was not susceptible to the “evils” which the United States has so far suffered, which he traces to their origin being the “turbulence and follies of democracy”. His goal to ensure a check was in place against this tendency, and he saw this as a method to accomplish that.
Rufus King (Massachusetts) noted that Pierce Butler’s proposal was still on the table for the committee for the selection of the second branch be by the State Legislatures. King using the notion that the second branch would also be proportional, that the body must be sufficiently large perhaps 80-100 to ensure Delaware has even one vote. Following this Spaight withdrew his motion, having never been seconded.
Even though the motion had been withdraw, James Wilson rose a spoke against both the State Legislatures and First Branch selecting the Second Branch, since the he felt the Second Branch should be independent of both. Wilson is in favor of the Second Branch also being chosen by the people, and suggested the mode used in his home state of New York, by unifying several districts of the first branch, in the choosing of a single member of the second branch.
James Madison observed such a proposal as Wilson’s would destroy the influence of the smaller states with the larger ones in a single district, as the larger states would most certainly choose from within themselves and not the smaller state in selecting their member of the second branch. He uses this exact scenario in his home state of Virginia, where small an large counties are combined into one district, and the result was the members came from the larger county. “Local partiality would often prefer a resident within the county or state to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own state”.
Roger Sherman (Connecticut) favored the selection of one member from each State Legislature, while Charles Pinckney moved to strike, “nominated by the State Legislatures” on this proposal. Pinckney’s proposal was defeated 9-0-1 Yea-0, Nay-9 (MA, CT, NY, NJ, PA, VA, NC, SC, GA) Split-1 (DE).
On the Question as a whole for the Second Branch being, “that the members of the first branch of the national legislature ought to be elected by the people of the several states”, the proposal fails Yea-3 (MA, VA, SC) Nay-7 (CT, NY, NJ, PA, DE, NC, GA).
Even though no resolution is agreed to on this question about what will become the Senate, the future of what will be in store for the Senate is firmly in place at this point. Several members have indicated the desire to have the States appoint their Senators, as will occur by the end of the Convention, and we also see James Wilson contend the people choose the Senators, as will eventually happen with the 17th Amendment over 130 years later in 1913.
Beginning the Powers of Congress
After the failure to agree on a method to choose the second branch, the Committee of the Whole moves on to the Virginia Plan’s Sixth resolution,
Resolved, that each branch ought to possess the right of originating acts; that the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation, and 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, or any treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles thereof.
The resolution would be broken up into parts and voted upon individually, most with out debate or objection.
“Whether each branch should originate laws,” Passed unanimously without debate.
“For transferring all the legislative powers of the existing Congress to this assembly”, also passed unanimously without debate.
These two portions effectively transfer the Law making ability from the Congress assembled, and give it to both Branches of the Legislature.
The Convention next took up the portion,
“for giving legislative power in all cases to which the state legislatures were individually incompetent”.
This portion drew criticism from several members of the Convention. Charles Pinckney and John Rutledge (South Carolina) objected to the vagueness of the term “incompetent”. They could not decide how to vote on this matter, until they new the exact enumeration of the powers expressed by this clause. Pierce Butler again expressed his fears in taking too much power from the States, and asked Edmund Randolph to what extent he meant by this meaning. Randolph responded, that he was opposed to giving indefinite powers to the National Legislature,or any such an inroad on the States jurisdiction. He did not feel anything could change his mind on this, and his opinion was fixed on this point.
James Madison than spoke, that when he came to this Convention that he had, “a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the National Legislature”. But he also stated he had doubts concern how practical this may be, and wishes to remain unaltered, but his doubts have grown stronger. He was not sure what his opinion would finally be, but he could not sway from the firm belief that it was essential to form a government to provide for the safety, liberty and happiness of the community. That at the end of all the Convention’s deliberation, all things must sustain that fact, however reluctantly.
On the question, “for giving legislative power in all cases to which the state legislatures were individually incompetent”, the motion fails to carry. Yea-0, Nay-9 (MA, NY, NJ, PA, DE, VA, NC, SC, GA) Split-1 (CT).
The Convention has no desire at this point to grant such a broad power that has no defined limits on how and what it can be applied to, and the motion is soundly defeated.
The clauses next on the floor being,
giving powers necessary to preserve harmony among the states, to negative all state laws contravening, in the opinion of the national legislature, the Articles of Union,
Benjamin Franklin moved the words “or any treaties subsisting under the authority of the Union,” being added after the words “contravening,” be added . This was agreed to without debate or dissent, and the final motion, “giving powers necessary to preserve harmony among the states, to negative all state laws contravening or any treaties subsisting under the authority of the Union, in the opinion of the national legislature, the Articles of Union”, passes without debate or dissent.
This resolution establishes the National Laws as supreme, and gives the National Legislature a mechanism to enforce it. Though this idea will go through many variants of the course of the Convention, the basic idea of ensuring and enforcing Supremacy of Laws will be in the Constitution.
The last clause brought up this day was also concerning the Legislature,
authorizing an exertion of the force of the whole against a delinquent state
James Madison after reflection on this clause doubted its practicality, justice and ensuring the desired effect, when applied to the people collectively and not the individual. He feared the clause could provide for the destruction of the Union, as the use of force would be seen as an act of war on a state, more than an infliction of punishment, and be considered as dissolving the agreement with the National Government (A Constitution). Madison desired a system which would render this unnecessary, and moved for postponement.
In accordance with the Rules, the motion was postponed, and the Convention adjourned.
End of Day Summary
Several proposals were addressed. The People will elect the first branch in the Legislature, and both Houses in the National Legislature will may originate bills and assume the current powers of the Congress Assembled under the Articles of Confederation, as well as an ability for the National Legislature to enforce supremacy. Proposals to have the Second Branch appointed by the First Branch, and giving the National Legislature power which the States are incompetent fail to carry.
The Convention is still working on the basic structure of the National Legislature, but the basic structure is starting to take shape. This shape will continue to move in directions and power we are not familiar with today, but also in ways we can easily recognize. Trial and error, and idea and debate will be the theme of the Convention, as was seen this day, in order to make a more perfect Union.
1: Notes of James McHenry
2: Notes of Robert Yates
3: Notes of Rufus King
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