July 17, 1787: The Supreme Law of the Land

William Paterson

New York Public Library Digital Collections, https://digitalcollections.nypl.org/items/79d9c2d8-f285-4228-e040-e00a18061fdc

"I think we shall eventually agree upon and adopt a system that will give strength and harmony to the Union, and render us a great and happy people. This is the wish of every good, and the interest of every wise man."

--William Paterson(NJ) to his wife Euphemia

Tuesday, July 17, 1787: The Convention Today

As soon as the Convention began, Gouverneur Morris (PA) made a motion to reconsider the previous day’s hard-fought compromise. He was not seconded, Madison noting that this last-ditch effort “was probably [privately] approved by several members who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller States.”

Bedford (DE) motioned, and G. Morris seconded, that Congress “legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Randolph (VA) rightly noted, “This is a formidable idea, indeed. It involves the power of violating all the laws and Constitutions of the States.” The motion passed, 6–4, with Connecticut, Virginia, South Carolina, and Georgia in opposition.

The next idea considered was giving the national legislature the power to “negative” specific state laws.

G. Morris, Sherman (CT), and Luther Martin (MD) argued that this provision was unnecessary and cumbersome. The national legislature had supreme authority that the courts would recognize in cases where state and national law clashed, and he said that considering every law passed by every state would occupy too much of the national legislature's time.

Madison (VA) thought that without this negative the states would freely violate the US Constitution. He argued that state judges would have no incentive to overturn state laws that violated the US Constitution, noting a situation in Rhode Island where “Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature, who would be the willing instruments of the wicked and arbitrary plans of their masters.” Charles Pinckney (SC) agreed with him.

Sherman responded that the negative would have the opposite effect of what Madison intended: that if the national legislature didn’t specifically repeal a state law that violated the US Constitution, that law would be permitted to stand.

The proposal to negative state laws failed in a 3–7 vote, with only Virginia, Massachusetts, and North Carolina in favor.

Making rapid progress, the Convention unanimously approved two significant measures:

• "The Legislative acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding.”
• “That a National Executive be instituted, to consist of a single person”

Now the Convention came to a new sticking point with a clause saying that the executive would “be chosen by the National Legislature.”

G. Morris thought this would make the executive “the mere creature of the Legislature,” and that the executive instead “ought to be elected by the people at large,” who would surely vote for someone of “distinguished character” and “continental reputation,” while “if the Legislature elect, it will be the work of intrigue, of cabal, and of faction.”

Sherman thought the legislature would be better at expressing “the sense of the nation” than a popular election where the people would “never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.” C. Pinckney and Williamson (NC) made a similar case. Mason (VA) thought “to refer the choice of a proper character for Chief Magistrate to the people” would be like referring “a trial of colors to a blind man. The extent of the country renders it impossible, that the people can have the requisite capacity to judge of the respective pretensions of the candidates.”

Wilson (PA) strongly agreed with G. Morris and suggested that a solution for a national election where no candidate won a majority of the vote would be to let the legislature decide amongst the top candidates under those limited circumstances.

The proposal to have a national popular election for the national executive failed 1–9, with only Pennsylvania in support.

L. Martin motioned, and Broom (DE) seconded, that the state legislatures appoint the national executive. This failed 2–8, with only Delaware and Maryland in support.

The Convention then unanimously agreed in four quick, succeeding votes that the national executive would:

• be appointed by the national legislature,
• have a term of seven years,
• enforce national laws,
• and have the power to make appointments to executive offices.

Next, Houstoun (GA) moved to eliminate language from the Constitution that would make the national executive ineligible for reelection. Sherman seconded.

G. Morris liked the motion. Wanting to get reelected would incentive the executive to act ethically and wisely.

Houstoun’s motion passed 6–4, with Delaware, Virginia, and the Carolinas in opposition.

McClurg (VA) motioned, and G. Morris seconded, that the national executive not have a defined term, but serve “during good behaviour,” thus making the executive as independent of an actor as the judiciary.

Sherman thought McClurg’s motion was “by no means safe.” Mason “considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary monarchy.”

The motion to have the national executive serve “during good behavior” (and not during a defined term) failed, 4–6, with only New Jersey, Delaware, Pennsylvania, and Virginia in support.

The day ended with a unanimous agreement to reconsider whether the national executive should be eligible for reelection.

Synopsis

• After the failure of a last-ditch effort to undo the previous day’s important compromise giving all states equal representation in one house of the legislature, the Convention made rapid progress for the first time in weeks.
• The Convention passed language making the Constitution “the supreme law of the land” and thus superior to all state laws and constitutions.
• The delegates decided that Madison’s idea of letting Congress overturn unconstitutional state laws would be a less effective way to enforce the Constitution’s supremacy than letting the courts overturn unconstitutional state laws.
• The delegates decided that the executive power would belong to one person, not a council or other group.
• The Convention could not agree on how the national executive would be chosen.
• The states in the Convention unanimously agreed that the national executive would have a term of seven years, enforce national laws, and have the power to make appointments to executive offices.
• The Convention could not agree on whether the national executive should be eligible for reelection, but it did decide that the executive should have a defined term, as opposed to serving “during good behavior.”

Delegates Today

• Johnson (CT) and Washington (VA) dined at Mrs. House's. Washington then joined a party in an excursion to Grays Ferry.
• Paterson (NJ) wrote to his wife. In addition to the inspiring quote above, he asked her to send him money in the form of hard currency, since the paper money issued by both New Jersey and Pennsylvania was so devalued as to be almost unusable.

Philadelphia Today

• The weather was fair and breezy.
• The Free African Society, an early organization in America for Black Americans, met at the home of Rev. Richard Allen.