Objections at the Constitutional Convention

Introduction

Edmund Randolph (Virginia), George Mason (Virginia) and Elbridge Gerry (Massachusetts) were at the Constitutional Convention from the beginning and stayed to the very end. During their eighty-eight days at the Convention, their views went through some dramatic changes. They supported the initial Virginia plan, which Randolph proposed early in the Convention, in May 1787. Among other things, this plan called for a bicameral national legislature with seats apportioned by population. States with smaller populations disliked this way of apportioning seats, leading to the proposal that in the lower house (the Senate), states receive equal representation.

By the end of the Convention, however, Randolph, Mason, and Gerry declined to support the Constitution. Is it possible to locate the moment or issue when they started to have reservations about the direction of the conversation? Randolph was the first to state his objections. He did so on September 10. Mason and Gerry’s call for a bill of rights was rejected on September 12. Randolph elaborated his concerns on September 15. He was joined on that day by Mason and then by Gerry. Mason also wrote his objections on his copy of the Committee of Style Report. Their decision to withhold their signatures became important in the debate over the ratification of the Constitution.

These excerpts of the debates in the Convention show that the call for a bill of rights was one aspect of a larger concern about the power of the proposed national government in relation to the rights of the states and the people. One of the mysteries is why the delegates, many of whom were involved with writing a bill of rights for their own state constitutions—especially Madison—dismissed a request that a bill of rights be incorporated within the proposed Constitution. One answer is that in September 1787, Madison and others were more interested in establishing the Constitution than constraining it in the direction of the Articles of Confederation.

SOURCE: GORDON LLOYD, ED., DEBATES IN THE FEDERAL CONVENTION OF 1787 BY JAMES MADISON, A MEMBER (ASHLAND, OH: ASHBROOK CENTER, 2014), 508–11, 544–46; “GEORGE MASON’S OBJECTIONS TO THE CONSTITUTION,” GEORGE MASON MANUSCRIPT COLLECTION, GUNSTON HALL LIBRARY AND ARCHIVES. WE HAVE NUMBERED WITHIN BRACKETS MASON’S TEN OBJECTIONS.

HTTPS://GOO.GL/DWB5WL

SOURCE: GORDON LLOYD ED., DEBATES IN THE FEDERAL CONVENTION OF 1787 BY JAMES MADISON, A MEMBER (ASHLAND, OHIO: ASHBROOK CENTER, 2014), 508-511, 544-546; “GEORGE MASON’S OBJECTIONS TO THE CONSTITUTION,” GEORGE MASON MANUSCRIPT COLLECTION, GUNSTON HALL LIBRARY AND ARCHIVES, AVAILABLE ONLINE

HTTP://WWW.GUNSTONHALL.ORG/LIBRARY/ARCHIVES/MANUSCRIPTS/OBJECTIONS.HTML

September 10

Mr. GERRY moved to reconsider Articles 21 and 22; from the latter of which “for the approbation of Congress,” had been struck out.^[1] He objected to proceeding to change the Government without the approbation of Congress, as being improper, and giving just umbrage to that body. He repeated his objections, also, to an annulment of the Confederation with so little scruple or formality.

Mr. HAMILTON^[2] concurred with Mr. GERRY as to the indecorum of not requiring the approbation of Congress. He considered this as a necessary ingredient in the transaction. He thought it wrong, also, to allow nine States, as provided by Article 21, to institute a new Government on the ruins of the existing one. He would propose, as a better modification of the two Articles (21 and 22,) that the plan should be sent to Congress, in order that the same, if approved by them, may be communicated to the State Legislatures, to the end that they may refer it to State conventions; each Legislature declaring, that, if the convention of the State should think the plan ought to take effect among nine ratifying States, the same should take effect accordingly.

Mr. GORHAM.^[3] 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.

Mr. HAMILTON. No convention convinced of the necessity of the plan will refuse to give it effect, on the adoption by nine States. He thought this mode less exceptionable than the one proposed in the article: while it would attain the same end.

Mr. FITZSIMONS^[4] remarked, that the words, “for their approbation,” had been struck out in order to save Congress from the necessity of an act inconsistent with the Articles of Confederation under which they held their authority.

Mr. RANDOLPH declared if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. He had from the beginning, he said, been convinced that radical changes in the system of the Union were necessary. Under this conviction he had brought forward a set of republican propositions, as the basis and outline of a reform. These republican propositions had, however, much to his regret, been widely, and, in his opinion, irreconcilably departed from. In this state of things, it was his idea, and he accordingly meant to propose, that the State conventions should be at liberty to offer amendments to the plan; and that these should be submitted to a second General Convention, with full power to settle the Constitution finally. He did not expect to succeed in this proposition, but the discharge of his duty in making the attempt would give quiet to his own mind.

Mr. WILSON^[5] was against a reconsideration for any of the purposes which had been mentioned.

Mr. KING^[6] thought it would be more respectful to Congress, to submit the plan generally to them than in such a form as expressly and necessarily to require their approbation or disapprobation. The assent of nine States he considered as sufficient; and that it was more proper to make this a part of the Constitution itself, than to provide for it by a supplemental or distinct recommendation.

Mr. GERRY urged the indecency and pernicious tendency of dissolving, in so slight a manner, the solemn obligations of the Articles of Confederation. If nine out of thirteen can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.

Mr. SHERMAN^[7] was in favor of Mr. KING’S idea of submitting the plan generally to Congress. He thought nine States ought to be made sufficient; but that it would be better to make it a separate act, and in some such form as that intimated by Col. HAMILTON, than to make it a particular article of the Constitution.

On the question for reconsidering the two articles, 21 and 22, —

Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, Georgia, aye, — 7; Massachusetts, Pennsylvania, South Carolina, no, — 3; New Hampshire, divided.

. . . Mr. RANDOLPH took this opportunity to state his objections to the system. They turned on the Senate’s being made the court of impeachment for trying the Executive, — on the necessity of three fourths instead of two thirds of each House to overrule the negative of the President, — on the smallness of the number of the Representative branch, — on the want of limitation to a standing army, — on the general clause concerning necessary and proper laws, — on the want of some particular restraint on navigation acts, — on the power to lay duties on exports, — on the authority of the General Legislature to interpose on the application of the Executives of the States, — on the want of a more definite boundary between the General and State Legislatures, — and between the General and State Judiciaries, — on the unqualified power of the President to pardon treasons, — on the want of some limit to the power of the Legislature in regulating their own compensations. With these difficulties in his mind, what course, he asked, was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in tyranny? He was unwilling, he said, to impede the wishes and judgment of the Convention, but he must keep himself free, in case he should be honored with a seat in the Convention of his State, to act according to the dictates of his judgment. The only mode in which his embarrassment could be removed was that of submitting the plan to Congress, to go from them to the State Legislatures, and from these to State Conventions, having power to adopt, reject, or amend; the process to close with another General Convention, with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government. He accordingly proposed a resolution to this effect.

Doctor FRANKLIN^[8] seconded the motion.

Colonel MASON urged and obtained that the motion should lie on the table for a day or two, to see what steps might be taken with regard to the parts of the system objected to by Mr. RANDOLPH.

Mr. PINCKNEY moved, “that it be an instruction to the Committee for revising the style and arrangement of the articles agreed on, to prepare 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 itself was referred to the Committee, nem. con.

Mr. RANDOLPH moved to refer to the Committee, also, a motion relating to pardons in cases of treason; which was agreed to, nem. con.

Adjourned.

September 12

Colonel MASON . . . wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.

Mr. GERRY concurred in the idea & moved for a Committee to prepare a Bill of Rights.

Colonel MASON 2ded. the motion.

Mr. SHERMAN, was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper which can not be discriminated. The Legislature may be safely trusted.

Colonel MASON. The Laws of the U. S. are to be paramount to State Bills of Rights.

On the question for a Committee to prepare a Bill of Rights, —

N.H. no. Mas. absent. Ct. no. N. J. no. Pa. no. Del no. Md. no. Va. no. N. C. no. S. C. no. Geo. no

September 15

Mr. RANDOLPH animadverting^[9] on the indefinite and dangerous power given by the Constitution to Congress, expressing the pain he felt at differing from the body of the Convention on the close of the great and awful subject of their labors, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing, “that amendments to the plan might be offered by the State conventions, which should be submitted to, and finally decided on by, another general Convention.” Should this proposition be disregarded, it would, he said, be impossible for him to put his name to the instrument. Whether he should oppose it afterwards, he would not then decide; but he would not deprive himself of the freedom to do so in his own State, if that course should be prescribed by his final judgment.

Colonel MASON seconded and followed Mr. RANDOLPH in animadversions on the dangerous power and structure of the Government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure. This Constitution had been formed without the knowledge or idea of the people. A second Convention will know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing. As the Constitution now stands, he could neither give it his support or vote in Virginia; and he could not sign here what he could not support there. With the expedient of another Convention, as proposed, he could sign.

Mr. PINCKNEY.^[10] These declarations from members so respectable, at the close of this important scene, give a peculiar solemnity to the present moment. He descanted^[11] on the consequences of calling forth the deliberations and amendments of the different States, on the subject of government at large. Nothing but confusion and contrariety will spring from the experiment. The States will never agree in their plans, and the deputies to a second convention, coming together under the discordant impressions of their constituents, will never agree. Conventions are serious things, and ought not to be repeated. He was not without objections, as well as others, to the plan. He objected to the contemptible weakness and dependence of the Executive. He objected to the power of a majority, only, of Congress, over commerce. But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support.

Mr. GERRY stated the objections which determined him to withhold his name from the Constitution:

1. the duration and re-eligibility of the Senate; 2. the power of the House of Representatives to conceal their Journals; 3. the power of Congress over the places of election; 4. the unlimited power of Congress over their own compensation; 5. that Massachusetts has not a due share of representatives allotted to her; 6. that three fifths of the blacks are to be represented, as if they were freemen; 7. that under the power over commerce, monopolies may be established; 8. the Vice President being made head of the Senate.

He could, however, he said, get over all these, if the rights of the citizens were not rendered insecure, — first, by the general power of the Legislature to make what laws they may please to call “necessary and proper”; secondly, to raise armies and money without limit; thirdly, to establish a tribunal without juries, which will be a Star Chamber^[12] as to civil cases. Under such a view of the Constitution, the best that could be done, he conceived, was to provide for a second general Convention.

On the question, on the proposition of Mr. RANDOLPH, all the States answered, no.

On the question to agree to the Constitution, as amended, all the States, aye. The Constitution was then ordered to be engrossed, and the House Adjourned.

Mason’s Objections to the Constitution

September 17

[1] There is no declaration of rights: and the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights, in the separate states, are no security. Nor are the people secured even in the enjoyment of the benefit of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several states.[2] In the House of Representatives there is not the substance, but the shadow only of representation; which can never produce proper information in the legislature, or inspire confidence in the people. — The laws will, therefore, be generally made by men little concerned in, and unacquainted with, their effects and consequences.[3] The Senate have the power of altering all money-bills, and of originating appropriations of money, and the salaries of the officers of their own appointment, in conjunction with the President of the United States — Although they are not the representatives of the people, or amenable to them. These, with their other great powers (viz.^[13] their powers in the appointment of ambassadors, and all public officers, in making treaties, and in trying all impeachments), their influence upon, and connection with, the supreme executive from these causes, their duration of office, and their being a constant existing body, almost continually sitting, joined with their being one complete branch of the legislature, will destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.[4] The judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several states; thereby rendering laws as tedious, intricate, and expensive, and justice as unattainable by a great part of the community, as in England; and enabling the rich to oppress and ruin the poor.[5] The President of the United States has no constitutional council (a thing unknown in any safe and regular government.) He will therefore be unsupported by proper information and advice; and will generally be directed by minions and favorites — or he will become a tool to the Senate — or a council of state will grow out of the principal officers of the great departments — the worst and most dangerous of all ingredients for such a council, in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office. Whereas, had a constitutional council been formed (as was proposed) of six members, viz., two from the eastern, two from the middle, and two from the southern states, to be appointed by vote of the states in the House of Representatives, with the same duration and rotation of office as the Senate, the executive would always have had safe and proper information and advice; the president of such a council might have acted as Vice-President of the United States, pro tempore,^[14] upon any vacancy or disability of the chief magistrate, and long continued sessions of the Senate, would in a great measure have been prevented. From this fatal defect of a constitutional council, has arisen the improper power of the Senate, in the appointment of the public officers, and the alarming dependence and connection between that branch of the legislature and the supreme executive. Hence, also, sprung that unnecessary officer, the Vice-President, who, for want of other employment, is made President of the Senate, thereby dangerously blending the executive and legislative powers; besides always giving to some one of the states an unnecessary and unjust pre-eminence over the others.[6] The President of the United States has the unrestrained power of granting pardon for treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt. By declaring all treaties supreme laws of the land, the executive and the Senate have, in many cases, an exclusive power of legislation, which might have been avoided, by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.[7] By requiring only a majority to make all commercial and navigation laws, the five southern states (whose produce and circumstances are totally different from those of the eight northern and eastern States) will be ruined: for such rigid and premature regulations may be made, as will enable the merchants of the northern and eastern states not only to demand an exorbitant freight, but to monopolize the purchase of the commodities, at their own price, for many years, to the great injury of the landed interest, and the impoverishment of the people: and the danger is the greater, as the gain on one side will be in proportion to the loss on the other. Whereas, requiring two-thirds of the members present in both houses, would have produced mutual moderation, promoted the general interest, and removed an insuperable objection to the adoption of the government.[8] 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 power as far as they shall think proper; so that the state legislatures have no security for the powers now presumed to remain to them, or the people for their rights. There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in time of peace.[9] The state legislatures are restrained from laying export duties on their own produce — the general legislature is restrained from prohibiting the further importation of slaves for twenty odd years, though such importations render the United States weaker, more vulnerable, and less capable of defense. Both the general legislature, and the state legislatures are expressly prohibited making ex post facto laws, though there never was, nor can be, a legislature but must and will make such laws, when necessity and the public safety require them, which will hereafter be a breach of all the constitutions in the union, and afford precedents for other innovations.[10] This government will commence in a moderate aristocracy; it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.

Footnotes

1. For these articles, see the Committee of Detail Report.
2. Alexander Hamilton of New York
3. Nathaniel Gorham of Massachusetts
4. Thomas Fitzsimons of Pennsylvania
5. James Wilson of Pennsylvania
6. Rufus King of Massachusetts
7. Roger Sherman of Connecticut
8. Benjamin Franklin of Pennsylvania
9. pointing critically to
10. Charles Pinckney of South Carolina
11. spoke at length
12. The Star Chamber existed as an English court of law between the late 15^th and mid 17^th centuries. Designed as a supplement to common-law courts that would ensure speedier trial and stricter judgments against prominent people, it dispensed with indictments and substituted appointive judges for a jury of commoners. It came to be seen as a tool by which the monarch could enforce his arbitrary will.
13. Abbreviation of the Latin videlicet: that is, namely
14. temporarily