August 31, 1787: The Fountain of All Power

The Fountain, 18th Century

National Gallery of Art, https://www.nga.gov/collection/art-object-page.43600.html

"The people were, in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased."

--James Madison

Friday, August 31, 1787: The Convention Today

King (MA) moved an amendment to confine the new government to the states ratifying it, which passed, only Maryland no.

Madison (VA) moved for the Constitution to go into effect when seven or more states ratified, provided those states were entitled to at least thirty-three members in the US House of Representatives’ First Congress. This would ensure a majority of Americans lived in the ratifying states when the Constitution went into effect.

Sherman (CT) now thought that all thirteen states should need to ratify for the Constitution to take effect.

The draft Constitution said state conventions would ratify. Gouverneur Morris (PA) wanted to enable the states to use other modes of ratification. Carroll (MD) stated that Maryland would not be able to ratify using a convention according to the rules laid out in its state constitution.

King, Madison, Gorham (MA), and Charles Pinckney (SC) thought state conventions were essential. Since the US Constitution would take power away from the states’ governments, the state legislatures would be more reluctant to ratify than state conventions. Madison resorted to “first principles” to argue for ratification conventions. Such conventions would get their power directly from the people, giving them legitimacy to override scruples about state constitutions and state legislative authority.

Luther Martin (MD) thought the state legislatures should have the ratifying power. This talk of first principles was dangerous. What if the legislature and the people were on opposite sides of the issue? Regardless, he was confident that Maryland wouldn’t ratify, regardless of the mode of ratification.

G. Morris’s motion to let states choose the method of ratification failed 4–6, with Connecticut, Pennsylvania, Maryland, and Georgia in support.

Carroll and L. Martin moved to require the states to unanimously ratify the Constitution. The motion failed, with only Maryland in support.

A motion to require ten state ratifications failed. A motion to require nine then passed 8–3, Virginia and the Carolinas opposed.

The article describing the ratification process then passed as amended, with only Maryland opposed (and Jenifer (MD) the only “yes” within that state’s delegation).

The Convention moved on to the next article, which stated that the Constitution would be submitted to the Confederation Congress “for their approbation,” prior to the Confederation Congress sending it out to the states. G. Morris and C. Pinckney moved to strike “for their approbation.” The motion carried.

G. Morris and C. Pinckney then moved to rewrite the article to instruct the state legislatures to call for ratification conventions “as speedily as circumstances will permit.” G. Morris thought quick ratification was essential. “When it first appears, with the sanction of this Convention, the people will be favorable to it [the Constitution]. By degrees the State officers, and those interested in the State Governments, will intrigue, and turn the popular current against it.”

L. Martin admitted G. Morris was right about the Constitution’s chances hinging on quick adoption, but as a now-avowed opponent of the Constitution, he welcomed a slow ratification process. The people would not support ratification “unless hurried into it by surprise.” Gerry (MA) agreed: the Constitution was “full of vices,” and he couldn’t get past the “impropriety of destroying the existing Confederation, without the unanimous consent of the parties to it.”

G. Morris and C. Pinckney’s motion encouraging quick ratification failed 4–7.

Gerry moved to postpone consideration of the article. Mason (VA) seconded, saying “he would sooner chop off his right hand, than put it to the Constitution as it now stands.” There were “some points” where Mason thought the Constitution was unsatisfactory. If these couldn’t be fixed, “his wish would then be to bring the whole subject before another General Convention.”

G. Morris also wanted another Convention, but for the opposite reason: the current one had shied away from creating a sufficiently powerful national government.

Randolph (VA), unsure if he could support the Constitution as written, suggested that the state conventions have the power to propose amendments to the Constitution, which would then be considered by a second national convention.

Gerry and Mason’s motion for a postponement failed 3–8, with New Jersey, Maryland, and North Carolina in support. The article then passed 10–1, with Maryland opposed.

The Convention then debated and unanimously ratified the draft Constitution’s final article, which described how the government would go into effect after ratification.

The delegates took up the report from the committee on treating states equally in trade regulations. The clause forbidding preference to the ports of any one state was approved. The delegates debated the clause forbidding vessels bound to or from one state to enter or clear in another. Madison, Gorham, and Langdon (NH) opposed it, pointing out cases where exceptions were desirable; Fitzsimons (PA) and the Marylanders strongly supported it, and it passed 8–2, New Hampshire and South Carolina “no.”

Sherman motioned “to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State.” The new Committee of Eleven was created. These were the members:

• Gilman (NH)
• King
• Sherman
• Brearly (NJ)
• G. Morris
• Dickinson (DE)
• Carroll
• Madison
• Williamson (NC)
• Butler (SC)
• Baldwin (GA)

Synopsis

• The delegates debated how the Constitution would be ratified. They decided:
  • The Constitution would only have authority over ratifying states.
  • Only specially called state conventions could ratify the Constitution.
  • Only nine states would need to ratify for the Constitution to take effect.
  • The Confederation Congress would be encouraged to submit the Constitution to the states regardless of whether it approved of the Constitution.
  • The Constitution would not explicitly encourage the states to quickly ratify.
• Three delegates—Luther Martin (MD), Gerry (MA), and Mason (VA)—voiced opposition to ratification of the Constitution and a fourth, Randolph (VA), was ambivalent.
• The Convention completed its work of going through every article of the draft Constitution and created a committee to resolve undecided issues.

Delegates Today

• Washington (VA) dined at Robert Morris’s (PA), and then escorted Elizabeth Powel to Governor Penn’s estate, Lansdowne, for tea.

Philadelphia Today

• Today was clear and pleasant.