<Constitutional Convention

Key Issues at the Constitutional Convention

  1. The Rule of Secrecy
  2. The Central Features of the Virginia Plan
  3. Why was the New Jersey Plan Introduced?
  4. What's the Point of the Hamilton Plan?
  5. The Connecticut Compromise
  6. The Necessary and Proper Clause
  7. The Slave Trade
  8. Establishing the Electoral College and the Presidency
  9. Judicial Review and Judicial Powers
  10. Why Three Delegates Didn't Sign
  11. George Washington and the Virginia Delegation
  12. Convention Procedures
The Rule of Secrecy

On May 25, the Constitutional Convention began its work by creating a Committee to propose “rules for conducting business.” On May 28, the Committee reported sixteen rules and on May 29 they reported six further rules. One of these was the rule of secrecy. According to Madison’s Notes, the exact language of the secrecy rule was: “That nothing spoken in the house be printed, or otherwise published or communicated without leave.”

The delegates adopted these rules without debate. And for the most part they adhered to the rule of secrecy. The issue of what would happen after the Convention adjourned was not addressed. Certainly Madison informed Thomas Jefferson about the main features of the deliberations. There was at least one Founder in each of the state ratifying conventions, and these conventions were open to the public with the deliberations reported widely in the press. Madison seems to have taken the vow of secrecy to the limit; his copious Notes weren’t available until after his death despite numerous requests that he make them available to help in constitutional interpretation.

Why secrecy? There seems to be an instinctive case against secrecy since democracy and openness are often deemed to be synonymous. There is the further suspicion that secret gatherings are designed by the wicked few to shaft the innocent many. This is in large part the conclusion of twentieth century Progressive Historiography that makes a point of equating meeting in secret with smoked filled rooms and elitist betrayal of virtuous majorities. They point to the secrecy rule, and the thick drapes over closed windows in Independence Hall during the hot Philadelphia summer, as evidence of an undemocratic founding. But anyone who has seen politicians in front of the camera knows that openness and posturing also go together and that being pressured by outside forces is not always conducive to wise deliberation and choice. Thus even contemporary society sees the need for executive sessions and private discourse.

I think the model the Founders had in mind was “the trial by jury model” where the jurors deliberated in secret in order to be candid with each other and to be free to change their mind for the right reason, namely, because they were persuaded to do so. There is also something to be said to being part of an uninterrupted conversation. It isn’t so much that politics seeks darkness rather than light; rather it is from darkness that light emerges.

The New Jersey Plan

On June 11, Roger Sherman proposed a compromise: rather than have proportional representation of the people in both the House and the Senate, why not agree to proportional representation in the House and equal representation for each state in the Senate? The rejection of this compromise, led the New Jersey, Connecticut, New York, and Delaware delegations, and Mr. Martin from Maryland, to propose the New Jersey Plan.

Madison’s Notes for June 15th records the following: “Mr. Dickinson said to Mr. Madison you see the consequence of pushing things too far.” The 11 Resolutions of the New Jersey Plan restored the single chamber structure of the Articles, where each state was represented equally regardless of the size of its population. As far as powers were concerned, the power to tax and the power to regulate interstate commerce were added to the powers that the union had under the Articles.

It is tempting to see the introduction of the New Jersey Plan as an attempt by the small states to fight off the impending victory of the large state supported Virginia Plan. But this is to simplify too much. There were some “large minded” men from small states—Dickenson for example—who were willing to meet the Madisonians half way, but to no avail.

What are the principles, if any, that undergird this Plan? On June 16, for example, Pinckney observed, rather cynically, that no principles were involved: “the whole comes down to this, as he conceived. Give N. Jersey an equal vote, and she will dismiss her scruple, and concur in the Natil. system.” But Pinckney, to the contrary notwithstanding, there are two “scruples” involved.

The first scruple concerns the rule of law. On February 28, 1787, the Confederation Congress endorsed the meeting of a Grand Convention, “for the sole purpose of revising the articles of confederation and reporting to Congress and the several state legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal constitution adequate to the exigencies of government and the preservation of the Union.” The defenders of the New Jersey Plan pointed to this mandate and suggested that the Virginia Plan was illegal. The second principled position was the question of prudence, namely, the improbability that the Virginia Plan will be adopted. The defenders of the New Jersey Plan argued that it would be more likely to be adopted by the electorate than the never before imagined Virginia Plan. On June 16, Lansing, in support of Patterson, stated: “The Scheme is itself totally novel. There is no parallel to it to be found.”

The New Jersey Plan supporters had to contend with the question, why are states qua states entitled to equal representation? There are two answers. 1) The colonies became the States and the States have been equally represented in every continental scheme from the start, so why the move to alter tradition? 2) The Declaration of Independence declared the independence, equality, and sovereignty of each state. And the Treaty of Paris recognized the independence of the states as part of the principles of the peace.

The Slave Trade

No issue is more in need of careful consideration than the slavery question, because no issue is more likely to impeach the entire Founding enterprise than the slavery issue. Unfortunately, historians have a way of reading history backwards rather than forwards and when we read the slavery issue backwards it looks like in the most critical area—Article I, Section 9 on the Slave Trade—the delegates are unequivocally and perpetually endorsing the institution of slavery. It is as if Judge Roger Taney, in the Dred Scott Case—the Constitution embraces the perpetual enslavement of African Americans—has the story correct and Abraham Lincoln, in his debates with Douglas—the Framers intended to put slavery in the course of ultimate extinction—has it all wrong. There is no evidence that either Taney or Lincoln read Madison’s Notes. When we turn to the evidence in Madison’s Notes, which position makes more sense?

We need to ask a prior question: how did Article I, Section 9 get to be the way it is? Was there unanimity among the delegates, was there even a discussion, and if, so, was there anybody who put up the slightest resistance to the continuation of slavery?

On August 6, the Committee of Detail Report was presented to the delegates. Article VII, Section 1 itemized the powers of Congress and sections two through seven placed limitations on the powers of Congress. Section 4 stated that:

No tax or duty shall be laid by the Legislature… on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.
This is clearly a slaveholder’s document: Congress is forbidden forever from prohibiting the slave trade and any incentive through taxation is also prohibited. This section is the result of a demand from the North Carolina, South Carolina and Georgia delegations to think practically rather than in terms of humanity and religion.

On September 17, the delegates signed the Constitution, Article I, Section 9 of which states the following:

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 the year one thousand eight hundred and eight, but a Tax or duty may be imposed on such importation.
Note that the final version permits Congress to eliminate the slave trade in 1808—which it did effective January 1, 1808—and permits Congress in the meantime to discourage the trade by taxation. Also the final version limits the Congressional prohibition to the existing States thus inviting the future restriction of slavery in the territories. In this regard, it is important to note that the Confederation Congress restricted slavery in the Northwest Territories in exchange for the return of fugitive slaves. The delegates adopt this Ordinance solution as part of Article IV.

What took place between August 6 and September 17? Rutledge of South Carolina argued on August 21, “Interest alone is the governing principle with Nations. The true question at present is whether the Southern States shall or not be parties of the Union.” Sherman and Ellsworth, moreover, recommended not making the slave trade a divisive issue: “Slavery in time will not be a speck in our Country.” Luther Martin disagreed: slavery “was inconsistent with the principles of the revolution.” On August 22, Mason supported Martin’s position: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country.” Dickinson, from Delaware, considered slavery “as inadmissible on every principle of honor & safety.” And Randolph stated, “he could never agree to the clause as it stands.”

On August 25, the delegates received a Committee compromise recommendation to permit Congress to prohibit the slave trade in 1800. Pinckney moved to alter this to 1808. Madison’s response was prophetic: “twenty years will produce all the mischief that can be apprehended from the liberty to import slaves.” The first time the slavery issue was raised in the convention is by Madison on June 6. There in his itemization of the causes of faction, or the unjust use of power, he says “that we have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.” G. Morris from Pennsylvania, on August 25, was rather blunt: why not say that this part of the Constitution was a compliance with… North Carolina, South Carolina & Georgia.”

The delegates agreed to the 1808 prohibition by a vote of Ayes 7, Noes 4. The 4 noes were New Jersey, Pennsylvania, Delaware, and Virginia and they voted “no” because they thought that 1808 was too compromising. Lincoln, and not Taney, has the weight of the Founders on his side of the argument.

The Connecticut Compromise

The Virginia Plan, introduced on May 29, was “wholly national.” Of particular importance is the absence of any structural representation for the states. According to Resolutions 3, 4, and 5, the general government shall have a bicameral legislative structure with neither branch elected by the states and with neither representing the states.

On June 11, the delegates overwhelmingly agreed that the lower house should be based on population and elected by the people. By a 6-5 vote, the delegates rejected a proposal by Roger Sherman that supported popular representation in the lower house and equal representation for the states in the upper branch. Thus on June 15, William Paterson submitted the New Jersey Plan, one that scrapped all the popular representation provisions of the Virginia Plan.

On 19 June, the New Jersey Plan was defeated 7-3-1. For the remainder of June, however, the delegates returned repeatedly to the compromise proposal of June 11. And on June 29, Ellsworth reintroduced the motion of June 11: equal representation for the states in the upper house with proportional representation in the lower house.

For the first time, the case for the representation of the states was elevated from one of convenience to one of principle. Ellsworth declared, “We were partly national; partly federal. He trusted that on this middle ground a compromise would take place.” On June 30, the youngest delegate, Jonathan Dayton of New Jersey—until then a pretty staunch nationalist—spoke for the first time: “We were partly federal, partly national in our Union,” he declared. “And he did not see why the Govt. might (not) in some respects operate on the States, in others on the people.”

On July 2, the Ellsworth proposal was defeated on a tie vote: 5-5-1. Nevertheless, a Committee of 11—one delegate from each state—was created to seek a compromise on the representation question. The composition of the committee reveals that Madison’s attempt to exclude the states from the structure of the general government had been halted in its tracks. Gerry was chosen over King from Massachusetts, Yates over Hamilton from New York, Franklin over Wilson from Pennsylvania, Davie over Williamson from North Carolina, Rutledge over Pinckney from South Carolina, and Mason over Madison from Virginia.

From July 5 to July 7, the Gerry Committee defended equal representation for the states in the Senate and popular representation in the House. We need to put theoretical niceties to one side, Gerry said, and think about “accommodation.” “We were… in a peculiar situation. We were neither the same Nation nor different Nations. If no compromise should take place what will be the consequence.”? Mason concurred: “There must be some accommodation.” Paterson, also on the committee, urged adoption of the report for “there was no other ground of accommodation.”

The key to the Compromise was winning over such former wholly national supporters like Gerry and Mason. An often-overlooked component of the Compromise was the agreement that money bills would originate in the House and could not be amended in the Senate. This feature was vital in winning over Mason and Gerry, as well as Randolph who introduced the wholly national Virginia Plan. These three delegates were willing to buy into the partly national (popular representation in the House), partly federal (equal representation for the states in the Senate) arrangement if the principle of no taxation without popular representation was adhered to.

On July 16, the delegates agreed (5-4-1) to the Gerry Committee Report, also known as the Connecticut Compromise. The losing delegates, Madison, Wilson, G. Morris, Pinckney, and King, decided not to challenge the outcome.

The Virginia Plan

On May 29, Edmund Randolph introduced the Virginia Plan containing 15 Resolutions.

Echoing, Madison’s Vices of April 1787, he itemized five reasons why the Articles of Confederation must be radically altered.

  1. “It does not provide against foreign attacks.”
  2. “It does not secure Harmony to the States.”
  3. “It is incapable of producing certain blessings to the States.”
  4. “It cannot defend itself against encroachments.”
  5. “It is not superior to State constitutions.”

The single most important reason why the delegates were gathered was because of what Madison referred to as the multiplicity, mutability, and injustice of legislation at the state level. To correct these deficiencies, the Virginia Plan removed the state legislatures both structurally, and in terms of powers, from any place in the new continental arrangement. Most importantly,

  1. The National Legislature should consist of two branches.
  2. The people of each State should elect the First Branch of the National Legislature. The Second Branch of the National Legislature should be elected by the first.
  3. The National Legislature shall have power “to legislate in all cases to which the separate States are incompetent,” and “to negative all laws passed by the States, contravening in the opinion of the National Legislature the articles of Union.”
  4. The National Legislature shall elect a National Executive.
  5. The Executive and a number of National Judiciary will form a Council of Revision. This Council will review laws passed by the National Legislature and have the power to reject the laws, unless the National Legislature can pass the act again.
  6. The National Legislature will create the National Judiciary. The structure will consist of one or more supreme tribunals and inferior tribunals. Judges will be appointed for life, during good behavior.
  7. State Legislatures, Executives, and Judges are to be bound by oath to support the Articles.
  8. The new plan for government should be ratified by the people, through assemblies of representatives chosen by the people.

The “oracle” Montesquieu had argued that for a people to remain free, they must reside in small, homogeneous communities. Public virtue was needed to secure a republic and this sentiment was endangered in large, heterogeneous communities. It is the unique contribution of Madison to challenge this traditional theory of self-government head on. In fact, he stands it on its head! His first verbal articulation of this position occurs on June 6 where he argues that majority faction is the mortal disease of popular government and traditional solutions to factious politics will no longer work. He thus directly challenges the traditional claim that people are happier in small republics. Just the opposite; unless we spread people out over an extended orbit and filter their opinions, passions, and interests through a scheme of representation, then popular government will come to a violent end. This speech is the precursor to the famous Federalist 10 essay and is part of the political theory underlying the Virginia Plan.

There is a division of opinion in the scholarly literature concerning the motivation behind the introduction of the Virginia Plan. Some scholars credit Madison for his strategic brilliance in shifting the attention away from revising the Articles of Confederation to this new and bold plan. Other interpreters point out that it was introduced by Virginia, the largest state, that would benefit in terms of representation at the expense of the smaller states who received equal representation under the Articles of Confederation. A number of political theorists portray the Virginia Plan as making the novel case for “the large republic” theory over against the traditional “small republic” theory articulated by Roger Sherman on June 6. What is clear from both Randolph’s arguments on May 29 and Madison’s position on June 6 is that the Virginians saw state legislatures, in both large and small states, as dangerous to liberty and justice. What is also clear is that Madison sees no principled reason for the equal representation of states qua states.

The Hamilton Plan

June 18 is Hamilton day at the convention. He argued that the New Jersey Plan simply duplicated the defects of the Articles and thus failed to address the source of the problem, namely, state sovereignty. And, he argued further, that the Virginia Plan didn’t go far enough. It didn’t adequately subdue the state governments—Hamilton wanted the governors of the states to be selected by the national government along the lines of the previous colonial administration—and it was insufficiently high-toned.

Hamilton stated that there are five “great & essential principles necessary for the support of government.” 1. ” An active & constant interest in supporting it,” 2. “The love of power. Men love power,” 3. ” An habitual attachment of the people,” 4. “Force by which may be understood a coercion of laws or coercion of arms,” and 5. “Influence.” According to Hamilton neither plan meets these five objectives.

To Hamilton, the task was “to go as far as in order to attain stability and permanency as republican principles will admit. Let one branch of the Legislature hold their places for life or at least during good behaviour. Let the Executive also be for life.” Put differently, only the British Government came close to securing good government. The feature he admired in the British system was the duration in office for the office holders. He suggested that the duration in office proposed by the delegates supporting both plans were inadequate; as long as the chief executive and Senators were elected, for example, and subject to impeachment, then we could trust them to have life terms! This was a major departure from what was accepted as a republican form of government.

It is tempting to speculate why Hamilton spent so much time on his eleven point plan and what impact he had. One bit of American mythology has Hamilton deliberately introducing such an outrageous Plan in order to make the Virginia rather than the New Jersey plan look moderate. This lovely story concludes by demonstrating that the very next day the amended Virginia Plan is adopted and subsequently Hamilton leaves the convention for New York. But there is no evidence that Hamilton’s speech swayed anyone to change their vote from the New Jersey plan to the Virginia Plan.

The importance of Hamilton’s speech is that it pushed the delegates, but much later on, to consider the true from the false definition of monarchy and aristocracy. The false definition, says Hamilton, is longevity in office; the true characteristic is how you get into office. And by the latter stages of the convention, the delegates were willing to entertain a much more “elevated” form of government that Hamilton so brashly presented a couple of months earlier. Hamilton’s point is that the key to monarchy and aristocracy is that the office holders: inherit their position and are not elected by the people. This distinction is critical because it challenges the traditional republican doctrine that “where annual elections end, tyranny begins,” and that intrinsic to republicanism are short terms in office with provisions for recall and rotation.

The Necessary and Proper Clause

Article One, Section 8 of the Constitution enumerates the powers of Congress. The eighteenth and final entry says: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” When and how did this phrase make its appearance in the convention deliberations?

The necessary and proper clause is a constitutional compromise, one somewhere between the Federalist disposition not to enumerate any Congressional powers at all—a vital part of a wholly national arrangement—and the Antifederalist concern to limit the reach of Congress to those items expressly itemized

The Virginia Plan was wholly national in terms of powers. Of particular importance, here, is the absence of 1) an enumeration of Congressional powers whatsoever—Congress was empowered to legislate in all areas where the states were “incompetent”—and 2) a Bill of Rights on behalf of either the states or the people.

On July 17, the delegates agreed (6-4) to adhere to the “incompetent” powers provision of the Virginia Plan. This vote, however, should not be interpreted as a Madisonian victory; rather it is a prelude to his fourth serious defeat on the federal-national issue. Prior to July 17, the “incompetent” clause sailed through without more than a murmur of opposition. Now it was on its last gasp.

On August 6, the Committee of Detail presented the first draft of the Constitution and, the next day, the delegates began their deliberations of the 23 Articles. What is really significant about the report is that the powers of Congress are enumerated for the first time. On August 20, the delegates turned to the final enumerated power which had never before been part of the constitutional conversation: “And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof.”

According to Madison’s Notes, on August 20, the clause was read and then: “Mr. Madison and Mr. Pinckney moved to insert between “laws” and “necessary” “and establish all offices,” it appearing to them liable to cavil that the latter was not included in the former.”

It is unclear, however, what future “cavil” Madison and Pinckney hoped to avoid, but what is clear is that they thought that the clause, as at it stood, had the “potentiality” to undermine the ability of the nation to take care of itself. Apparently three members of the Committee of Detail thought it unnecessary to adopt the Madison-Pinckney amendment.

From September 12 to September 17, the delegates debated The Committee of Style Report; the necessary and proper clause received the most attention. One gets the impression, especially during the September 14 discussion, that the Framers were engaged in an initial “liquidation” of the meaning of the necessary and proper clause. An exchange on September 14 leaves us pondering what is included from what is excluded.

Mr. Madison and Mr. Pinckney then moved to insert in the list of powers vested in Congress a power—”to establish an University, in which no preferences or distinctions should be allowed on account of religion.”
Mr. Wilson supported the motion.

Mr. Govr Morris. It was not necessary. The exclusive power at the Seat of Government will reach the object.

On the question, it was defeated Ayes 4, Noes 6, divided 1.

Establishing the Electoral College and the Presidency

The Virginia Plan, introduced by Edmund Randolph on May 29, called for the creation of a National Executive elected by the Congress. On the initial consideration of the proposal, the delegates on June 1, June 2, and June 4 agreed on a single executive who would serve a seven year term and be ineligible for re-election. Some delegates wanted to settle the issue of 1) re-eligibility first, others wanted to 2) fix the length of term before proceeding further, still other delegates wanted to discuss how 3) the executive would be elected before considering anything else, and still other delegates thought 4) that the powers of the President should be the primary question to be settled.

On the first reading, and every time thereafter, the convention agreed to provide the chief executive with a veto subject to Congressional override. (See Judicial Review Theme.) The biggest issue was how to elect the President. On June 9, the delegates defeated a motion to have the President elected by state executives. On June 18, Hamilton surprised the delegates with a proposal for a President for life.

The delegates revisited the four main issues—without settling any one once and for all—involved in the construction of the executive on July 17, 18, 19, 20, 24, and 26. On July 17, the delegates agreed to a single executive elected by the legislature, and to be re-elected rather than serve during good behaviour. On July 18 and 19, the delegates revisited the issue of whether the President should be re-eligible and embraced the idea that perhaps the president should be chosen by electors chosen by state legislatures. On July 20, a proposal permitting the impeachment of the president was approved. On July 24, the delegates returned to the earlier position: the President should be elected by the national legislature. Finally, on July 26, the delegates approved a seven-year term for the President. But he would be ineligible for re-election!

The Committee of Detail Report of August 6, summarized where the delegates stood. On August 24, the delegates turned to the Presidential article and defeated four different modes of electing the President. In the end, the Convention selected members of the Brearly Committee whose objective was to settle outstanding issues. The chief of these was the Presidential clause. On September 4, the Brearly Committee recommended that the Convention support the Electoral College method of choosing a president. On September 6 and 7, the delegates agreed to a four-year renewable term for the President and that he be a natural born citizen. On September 8, the delegates settled the treaty making power and agreed on the impeachment of the President for “high crimes and misdemeanours.” Finally, on September 15, the delegates added “the inferior officers clause.”

To summarize, the Brearly Committee, composed of Gilman, King, Sherman, Brearly, G. Morris, Dickinson, Carroll, Madison, Williamson, Butler, and Baldwin—a veritable cross-section of the delegates—proposed the adoption of an Electoral College in which both the people and the States are represented in the election of the President. This resolution of the difficult matter of Presidential election clearly meant that the partly national -partly federal model had become the deliberate sense of the convention. This structural compromise—Congress is partly federal and partly national—became the deliberate sense of the community by the end of the Convention. It is the model to which the delegates returned for the resolution of the most durable of issues, namely, the election of the President.

Judicial Review and Judicial Powers

The Virginia Plan, introduced on May 29, called for the creation of a National Judiciary with judges holding office during good behavior. Another feature of the Virginia Plan proposed that before a bill becomes a law it must be reviewed by the Executive branch and “a convenient number of the National Judiciary.” This “Council of Revision” would “have the authority to examine every act of the of the national Legislature before it shall operate, & every act of a particular Legislature before a negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National legislature be again passed, or that of a particular Legislature be again negatived by___________of the members of each branch.”

In his Vices, Madison had indicated that two of the vices of the American system were the ability of state legislatures to pass multiple and mutable laws. The Council is his answer to these vices at both the state and national level. It is important to note that the Council gives the Executive and Judiciary joint prior review before a bill becomes a law.

On three separate occasions— June 4, July 21, and August 15— the delegates considered this novel Council of Revision proposal. Although the idea was abandoned, the reasons for doing so are vital for understanding the Framers’s position on the role of the Judiciary. At the heart of the objection to the Council was that the Executive alone should have the power to review legislation before it became law. And in doing so, the Framers excluded the Judiciary from having the power of policy review or what we might call prior review. That was a political function to be performed by the Executive alone. But the Framers simultaneously bestowed on the judiciary the power of subsequent review or to exercise a judicial review after policy has been jointly made by the Legislature and the Executive.

On June 4, Gerry opposed giving the judges the power of prior review because they have the power of “exposition of the laws, which involved a power of deciding on their constitutionality. In some of the States the Judges had (actually) set aside laws as being agst. The Constitution. This was done too with general approbation.” King concurred: “the Judges ought to be able to expound the law as it should come before them, free of the bias of having participated in its formation.” On July 21, Gerry repeated his objection to the Council: ” It was making the Expositors of the Laws, the Legislators which ought never to be done. ” Strong agreed that the distinction between making laws ought to be distinguished “from that of expounding the laws.” Gorham thought, “the judges ought to carry into the exposition of the laws no prepossessions with regard to them.” Mr. G. Morris argued similarly: “Expositors of laws ought to have no hand in making them.” And Luther Martin stated that the judges ought not to “have a double negative.” And finally, Rutledge thought “the Judges ought never to give their opinion on a law until it comes before them.” On August 15, Pinckney reiterated the same theme: he “opposed the interference of the judges in the legislative business; it will involve them in parties, and give a previous tincture to their opposition.” Sherman “disapproved of judges meddling in politics and parties, “and Williamson objected to “admitting the judges into the business of legislation.”

It is often remarked by judicial scholars that Article III of the Constitution makes no mention of judicial review. This is true. So, the presumption is that the Framers didn’t intend to establish judicial review otherwise they would have put it in the Constitution. Thus the question, where and when did judicial review make its appearance in our constitutional heritage? The conventional answer is that John Marshall, in Marbury v Madison, 1803, established judicial review. But if we need to find the exact words “judicial review,” to establish judicial review, then the Marbury case isn’t good enough because the phrase doesn’t occur there either. The phrase “judicial review” does not make its appearance until the 1880s and then in a law review article by Edwin Corwin.

The evidence suggests that the Framers recognized what we now call judicial review, but were serious about the distinction between policy and constitutional review.

On August 27, Johnson moved to “insert the words ‘this Constitution and the’ before the word ‘laws.'”

Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the cases not of this nature ought not to be given to that Department.

The motion of Docr. Johnson was agreed to nem:con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.

Why Three Delegates Didn't Sign

Mason and Gerry were members of the Gerry Committee that proposed the Connecticut Compromise. A generally overlooked component of the Compromise was the agreement that money bills would originate in the House and could not be amended in the Senate. This feature was vital in winning over Mason and Gerry, as well as Randolph who introduced the wholly national Virginia Plan. These three delegates were willing to buy into the partly national, partly federal arrangement if the principle of no taxation without popular representation was followed.

On August 6, the Committee of Detail Report was presented and Article IV, Section 5 honored this agreement. On August 8, however, the delegates agreed to drop this provision. On August 13, Dickinson attempted to reassure Randolph et al that as far as money bills are be concerned,” Experience should be our only guide. Reason may mislead us.” The defeat of the money bills provision marks the critical moment for the three dissenters. By early September, all three delegates had become concerned that Constitution had given far too much authority to the Senate and that the executive contained the seeds of monarchy.

By September 10, Randolph was convinced that Congress now possessed sufficient powers to turn the Philadelphia Constitution into a wholly national document. He decided to withhold his signature because he thought the Constitution contained the potentiality to shift rapidly from the republican foundation insisted upon in the Virginia Plan that Randolph introduced.

Randolph listed 12 objections among which were: “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.” The delegates reached out to Randolph during the last week and responded to each of these objections, but to no avail. He was particularly concerned about “the general clause concerning necessary and proper laws,” as a major source of future tyranny.

On September 15, Gerry concurred: “the rights of the citizens were… rendered insecure” by 1. The general power of the Legislature to make what laws they may please to call necessary and proper. 2. To raise armies and money without limit. 3. To establish a tribunal without juries, which will be a Star-Chamber as to Civil Cases. “He could… get over” his eight other objections if these three were overcome.

On September 15, Mason listed sixteen objections among which were the absence of a declaration of rights, the 1808 compromise on the slave trade, and the general power of the Senate in the system, the “shadow of representation” in the House, and the powers of the President. He too criticized the presence of the necessary and proper clause in the Constitution:

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 powers as far as they think proper; so that the State legislatures have no security for the powers not presumed to remain to them, or the people for their rights.
Interestingly, Mason, Gerry, and Randolph were more concerned that the Constitution departed from the traditional principles of republicanism than that the Constitution departed too far from the traditional principles of federalism.

George Washington and the Virginia Delegation

1) Virginia was the first state to select delegates to the Grand Convention and took the lead in encouraging other states to do the same. The Virginia Legislature selected 7 delegates: Washington, Blair, Madison, Mason, McClurg, Randolph, and Wythe. They arrived in Philadelphia on time, but had to wait a couple of weeks until a quorum of seven states was achieved. The delegates were also united in their approach and this consensus was displayed right away with the presentation of the Virginia Plan.

2) Mr. Wythe left in early June, but there were no cracks then in the Virginia delegation. With the passage of the Connecticut Compromise on July 16, and the creation of the Committee of Detail at the end of July, Dr. McClurg returned to his medical practice in Virginia. All seemed to be pretty smooth sailing. But there were strains. Virginia voted no on the Connecticut Compromise that was adopted by the Convention. The alliance of Madison, Blair, and McClurg carried the no vote. Mason voted yes; he was part of the Compromise Committee, and certainly by the next day, Randolph came to agree with Mason that it was best to forge ahead.

3) The Connecticut Compromise has three parts a) equal representation for people in the House, b) equal representation for the states in the Senate and c) money bills can only be introduced in the House and can’t be amended by the Senate. This third component was critical in persuading Mason and Randolph to deviate from the Virginia Plan.

4) But things started to unravel in August. The once united and leading state was now divided and McClurg had returned to Virginia. And they divide on August 8 and 9 when Madison attempted to remove the third feature of the Compromise. Mason said that to “strike out this section was to unhinge the compromise of which it made a part.” Randolph said that the removal would lead to “endangering the success of the plan.” The delegations voted 7 yes, 4, no to strike out the third feature. Virginia voted to strike, so the internal Virginia vote must have been 3-2 and that could only have happened if Washington sided with Madison and Blair over against Mason and Randolph.

5) Randolph refused to accept defeat. On August 11, he persuaded the Convention to reconsider the August 8 vote to strike and the issue was debated thoroughly on August 13. Mason and Randolph saw principle to be at sake, Madison said nothing of principle was at stake in the Connecticut Compromise, and Dickinson observed that “experience must be our only guide. Reason may mislead us.” A vote was taken as to the “exclusive originating of money bills in the H. of Reps.”

6) Madison gives details of the August 13 vote that reinstated exclusive origination accompanied by a footnote explanation:

N. H. ay. Mas. ay. Ct. no. N. J. no. P. no. Md. No. Virga. ay. Mr Blair & Mr M. no” Mr. R. Col. Mason and General Washington* ay. N. C. ay. S. C. no. Geo. No [Ayes”4; noes”7.]
*He disapproved & till now voted agst., the exclusive privilege (see 4 above), he gave up his judgment he said, because it was not of very material weight with him & was made an essential point with others, who if disappointed, might be less cordial in other points of real weight.

Now I interpret this vote switch by Washington to be the action of a prudent leader, not only of a national convention, but of a Virginia delegation that was in serious disagreement. He realized that it was important to keep Randolph and Mason on board if possible so long as no fundamental principle had been violated. But Randolph and Mason held out for more.

7) On August 31, September 5, 8, and 10, the delegates, especially the Virginia delegates, divided over ratification procedures. Should ratification be by state legislatures or state conventions, and if by conventions, how many should say “yes” for ratification? What is the role of these conventions? Can they propose amendments? What about the role of the existing Congress? Can they make alterations? Should there be a Second Grand Convention where all these things are pulled together?

8) Randolph and Mason wanted maximum flexibility otherwise they would refuse to sign. On September 10, Randolph gave 12 reasons why he couldn’t sign”including the “smallness of the number of the Representative branch””that could only be overcome by following a long ratification route through the Congress, the states, and back to a SECOND CONVENTION. Mason urged the delegates to see what they could do to accommodate Randolph, but on September 12 he issued 16 reasons why he too couldn’t sign the Constitution.

9) Mason and Randolph repeated their objections on September 15. Randolph, seconded by Mason, moved that if the delegates agreed “with the expedient of another Convention as proposed, he could sign.” Madison reports: “On the question on the proposition of Mr. Randolph. All the States answered-no.” Virginia could only have voted no if Washington sided with Madison and Blair over against Mason and Randolph.

10) The last three lines of Madison’s Notes on the 15th are worth citation: “on the question to agree to the Constitution as amended. All the States ay. The Constitution was then ordered to be engrossed. And the House adjourned.”

If Washington had not acted, Virginia would have been divided between the two camps and could not have voted “ay.” Even on the last day, September 17, Washington reached out to Randolph and spoke for the first time urging the delegates to increase the size of the representative branch. The delegates agreed, but it was not enough to get Randolph and Mason to sign.

Convention Procedures

When we think of Parliamentary procedures, in the twenty-first century, we instinctively think of Robert’s Rules of Order. But Robert’s Rules first appeared in 1876, nearly 100 years after the Constitutional Convention. The first edition probably seemed a bit lengthy at the centenary of the Declaration of Independence; it was 120 pages long. By the time of the 10th edition, however, it was over 700 pages. The other possible source that comes to mind concerning rules of procedure at the Founding is Thomas Jefferson’s Manual. But this Manual is after the fact so to speak; Vice President Jefferson compiled this Manual as presiding officer of the Senate between 1797 and 1801. It was published in 1801.

I do not mean to suggest that there were no rules of procedure present at the Founding; On the contrary, the Framers spent the first couple of days talking about the rules of the Convention. But it does suggest that the rules were not available in one comprehensive and totally clear form that had become widely accepted from state-to-state and decade-to-decade by the late 18th century. It is important to note in this regard that Article 1, section 5 of the Constitution, written in 1787, gives to the House and the Senate respectively control of their internal rules of operation. Again, I do not mean to suggest that politicians in the mid- to late-18th century simply made the rules up as they went along; rather I am suggesting that there was not ONE rulebook that had achieved a system wide acceptance level. The conduct of self-government in the eighteenth century involved a combination of a few rules, some precedent, and much acting on ones feet.

The rules of procedure agreed to by the delegates at the Constitutional Convention are outlined in James Madison’s Notes on May 28 and 29, and William Jackson’s Journal for the same days. They form the pillars that support the four-month conversation.

Madison’s Notes, on May 27 indicate that a Committee For Preparing Rules consisting of Wythe, Hamilton, and C. Pinckney, was created. On May 28, Madison and Jackson note that the Committee reported following standing rules:

  1. A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day.
  2. Immediately after the President shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary.
  3. Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript—and of two members rising at the same time, the President shall name him who shall be first heard.
  4. A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject.
  5. A motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the Secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared.
  6. Orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced.
  7. When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received.
  8. A question which is complicated, shall, at the request of any member, be divided, and put separately on the propositions, of which it is compounded.
  9. The determination of a question, although fully debated, shall be postponed, if the deputies of any State desire it until the next day.
  10. A writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards, the question shall be put on the whole, amended, or approved in its original form, as the case shall be.
  11. That Committees shall be appointed by ballot; and the members who have the greatest number of ballots, although not a majority of the votes present, shall be the Committee. When two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred.
  12. A member may be called to order by any other member, as well as by the President; and may be allowed to explain his conduct or expressions supposed to be reprehensible. And all questions of order shall be decided by the President without appeal or debate.
  13. Upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate.
  14. When the House shall adjourn, every member shall stand in his place, until the President pass him.
  15. Voting at the Convention shall be one state one vote. Madison and the Journal report that six additional rules were agreed to on May 29.
  16. No member shall be absent from the House, so as to interrupt the representation of the State, without leave.
  17. That Committees do not sit whilst the House shall be or ought to be, sitting.
  18. That no copy be taken of any entry on the journal during the sitting of the House without leave of the House.
  19. The members only are permitted to inspect the journal.
  20. That nothing spoken in the House be printed, or otherwise published or communicated without leave.
  21. That a motion to reconsider a matter which had been determined by a majority, may be made, with leave unanimously given, on the same day on which the vote passed; but the otherwise not without one day’s previous notice: in which last case, if the House agree to the reconsideration, some future day shall be assigned for the purpose.

(In a footnote reference on May 28, Madison reports that there was a debate between the Pennsylvania and Virginia delegates on whether to insist on a proportional system of voting at the Convention, or to retain, albeit temporarily, the principle of one state one vote as prevailed under the Confederation. The latter prevailed.)

But even these 21 basic rules in support of civilized conversation cannot cover every possible situation because every contingency cannot be anticipated. Thus we need a President whose decision on unanticipated matters shall be final. During the first two months of the Convention, Nathaniel Gorham of Massachusetts was, for the most part, the chair, chosen probably because of his experience in leading the debates in the Confederation Congress. During the last two months, George Washington filled that role.