Liberty Letters, 23 July 1787, James Madison
Editor’s Comments: Would it surprise a few libertarians, who more than state rights advocates, lean toward anarchy, and like to justify their leanings, for instance, in favor of the right to secession, that the justification for state ratifying conventions involving the people, rather than their legislature, was to protect against the so-called right to secession? Madison summarizing the comments of Col. Mason writes: “Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and can not be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly.” Steve Farrell
Mr. John Langdon & Mr. Nicholas Gilman from N. Hampshire, took their seats.
Resoln.: 17. 1 that provision ought to be made for future amendments of the articles of Union, 2 agreed to, nem. con.
Resoln. 18. 3 “requiring the Legis: Execut: & Judy. of the States to be bound by oath to support the articles of Union,” 2 taken into consideration.
Mr. WILLIAMSON suggests that a reciprocal oath should be required from the National officers, to support the Governments of the States.
Mr. GERRY moved to insert as an amendmt. that the oath of the officers of the National Government also should extend to the support of the Natl. Govt. which was agreed to nem. con.
Mr. WILSON said he was never fond of oaths, considering them as a left handed security only. A good Govt. did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the Existing Govt — in case future alterations should be necessary; and prove an obstacle to Resol: 17. 1 just agd. to.
Mr. GHORUM did not know that oaths would be of much use; but could see no inconsistency between them and the 17. Resol: or any regular amendt. of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution, could never be regarded as a breach of the Constitution, or of any oath to support it.
Mr. GERRY thought with Mr. Ghorum there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side he thought one good effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, 4 not as parts of the General System, & had in all cases of interference given a preference to the State Govts. The proposed oaths will cure that error.
The Resoln. [18 5] was agreed to nem. con. —
Resol: 19. 6 “referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it” was next taken into consideration.
Mr. ELSEWORTH moved that it be referred to the Legislatures of the States for ratification. Mr. PATTERSON 2ded. the motion.
Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and can not be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Govts. were not derived from the clear & undisputed authority of the people. This was the case in Virginia Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.
Mr. RANDOLPH. One idea has pervaded all our proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections agst. a ratification by Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States agst. that of the Confederation which has had no higher sanction than Legislative ratification. Whose opposition will be most likely to be excited agst. the System? That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischeivous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people.
Mr. GERRY. The arguments of Col. Mason & Mr. Randolph prove too much. they prove an unconstitutionality in the present federal system even in some of the State Govts. Inferences drawn from such a source must be inadmissible. Both the State Govts. & the federal Govt. have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. — Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.
Mr. GHORUM was agst. referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Genl. Govt. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro’ a Convention. 3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a Convention. Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massachts. 4. the Legislatures will be interrupted with a variety of little business, by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether, the national system. 5. If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say, that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States.
Mr. ELSEWORTH. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as wd. be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Natl. Govt. carries with it that of strengthening the public debt. It was said by Col. Mason 1. 7 that the Legislatures have no authority in this case. 2. 8 that their successors having equal authority could rescind their acts. As to the 2d. point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1st. point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congs. applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must unanimously concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.
Mr. WILLIAMSON thought the Resoln.: [19 9] so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.
Mr. GOVr. MORRIS considered the inference of Mr. Elseworth from the plea of necessity as applied to the establishment of a new System on ye. consent of the people of a part of the States, in favor of a like establishment. on the consent of a part of the Legislatures as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a majority of them; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendmt. moved by Mr. Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.
Mr. KING thought with Mr. Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with Mr. E — also that the plea of necessity was as valid in the one case as in 10 the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Congs. one had been that such powers as would operate within the State, 11 could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support & maintain the existing Constitutions.
Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. 12 A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. 12 The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.
On 13 question on Mr. Elseworth’s motion to refer the plan to the Legislatures of the States
N. H. no. Mas. no. Ct. ay. no. 14 Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. 15
Mr. GOVr. MORRIS moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, amend, & establish the same. — Not seconded . On 13 question for agreeing to Resolution 19. 16 touching the mode of Ratification as reported from the Committee of the Whole; viz, to refer the Constn. after the approbation of Congs. to assemblies chosen by the people:
N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. 17
Mr. GOVr. MORRIS & Mr. KING moved that the representation in the second branch consist of _____ members from each State, who shall vote per capita.
Mr. ELSEWORTH said he had always approved of voting in that mode.
Mr. GOVr. MORRIS moved to fill the blank 18 with three. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each State, and a majority be made a quorum, the power would be lodged in 14 members, which was too small a number for such a trust.
Mr. GHORUM preferred two to three members for the blank. A small number was most convenient for deciding on peace & war &c. which he expected would be vested in the 2d. branch. The number of States will also increase. Kentucky, Vermont, the Province of Mayne & Franklin will probably soon be added to the present number. He presumed also that some of the largest States would be divided. The strength of the General Govt. will lie not in the largeness, but in the smallness of the States.
Col. MASON thought 3 from each State including new States would make the 2d. branch too numerous. Besides other objections, the additional expense ought always to form one, where it was not absolutely necessary:
Mr. WILLIAMSON. If the number be too great, the distant States will not be on an equal footing with the nearer States. The latter can more easily send & support their ablest Citizens. He approved of the voting per capita.
On the question for filling the blank with “three.”
N. H. no. Mas. no. Cont. no. Pa. ay. Del. no. Va. no. N. C. no. S. C. no. Geo. no. 19
On 20 question for filling it with “two.” Agreed to nem. con.
Mr. L MARTIN was opposed to voting per Capita, as departing from the idea of the States being represented in the 2d. branch.
Mr. Carrol, was not struck with any particular objection agst. the mode; but he did not wish so hastily to make so material an innovation.
On the question on the whole motion viz. the 2d. b. to consist of 2 members from each State and to vote per capita.”
N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. 21
Mr. HOUSTON & Mr. SPAIGHT moved “that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered.” Mr. Houston urged the extreme inconveniency & the considerable expense, of drawing together men from all the States for the single purpose of electing the Chief Magistrate.
On the question which was put without any 22 debate.
N. H. ay. Mas. ay. Ct. ay. Pa. no. Del. ay. Md. no. Virga. no. N. C. ay. S. C. ay. Geo. ay. 23
Ordered that tomorrow be assigned for the reconsideration. Cont. & Pena. no — all the rest ay.
Mr. GERRY moved that the proceedings of the Convention for the establishment of a Natl. Govt. (except the part relating to the Executive), be referred to a Committee to prepare & report a Constitution conformable thereto.
GENl. PINKNEY reminded the Convention that if the Committee should fail to insert some security to the Southern States agst. an emancipation of slaves, and taxes on exports, he shd. be bound by duty to his State to vote agst. their Report — The appt. of a Come. as moved by Mr. Gerry. 24 Agd. to nem. con.
25 Shall the Come. consist of 10 members one from each State prest.? All the States were no, except Delaware ay.
Shall it consist of 7. members.
N. H. ay. Mas. ay. Ct. ay. Pa. no. Del. no. Md. ay. Va. no. N. C. no. S. C. ay. Geo. no. 26 The question being lost by an equal division of Votes.
It was agreed nem — con — that the Comttee 27 consist of 5 members, to be appointed tomorrow.
1. The words “The seventeenth Resolution” are substituted in the transcript for “Resoln. 17.”
2. The Word “was” is here inserted in the transcript.
3. The words “The eighteenth Resolution” are substituted in the transcript for “Resoln. 18.”
4. The word “and” is here inserted in the transcript.
5. The words “the eighteenth” are substituted in the transcript for “18.”
6. The words “The nineteenth Resolution” are substituted in the transcript for “Resol: 19.”
7. The figure “1” is changed to “in the first place” in the transcript.
8. The figure “2” is changed to “and in the second” in the transcript.
9. The words “the nineteenth” are substituted in the transcript for “19.”
10. The word “in” is omitted in the transcript.
11. The transcript uses the word “State” in the plural.
12. The figures “1” and “2” are changed to “First” and “Secondly” in the transcript.
13. The word “the” is here inserted in the transcript.
14. The entry in the notes was originally “N.J. no.” Madison struck out “N.J.” but inadvertently let “no” remain.
15. In the transcript the vote reads: “Connecticut, Delaware, Maryland, aye — 3; New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no — 7.”
16. The words “the nineteenth Resolution” are substituted in the transcript for “Resolution 19.”
17. In the transcript the vote reads: “New Hampshire, Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye — 9; Delaware, no — 1.”
18. The transcript does not italicise the word “blank.”
19. In the transcript the vote reads: “Pennsylvania, aye — 1; New Hampshire, Massachusetts, Connecticut, Delaware, Virginia, North Carolina, South Carolina, Georgia, no — 8.”
20. The word “the” is here inserted in the transcript.
21. In the transcript the vote reads: “New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, Georgia, aye — 9; Maryland, no — 1.”
22. The word “any” is omitted in the transcript.
23. In the transcript the vote reads: “New Hampshire, Massachusetts, Connecticut, Delaware, North Carolina, South Carolina, Georgia, aye — 7; Pennsylvania, Maryland, Virginia, no — 3.”
24. The word “was” is here inserted in the transcript.
25. The words “On the question” are here inserted in the transcript.
26. In the transcript the vote reads: “New Hampshire, Massachusetts, Connecticut, Maryland, South Carolina, aye — 5; Pennsylvania, Delaware, Virginia, North Carolina, Georgia, no — 5.”
27. The word “should” is here inserted in the transcript.