For the past few weeks we have covered the Constitutional convention in Philadelphia, primarily the powers of Congress, that made up Article I and the powers of the presidency, laid out in Article II. This week, we’ll go through all the rest.
Judiciary
The final branch of government to consider was the judiciary. The Virginia plan called for a judiciary to be chosen by the legislature and to hold offices during good behavior. The New Jersey plan called for a federal court to be chosen by the executive, but did not see the need for trial courts.
 |
| Signing the Constitution |
After some debates, the delegates determined that federal courts would have jurisdiction over issues that involved federal treaties, collection of federal revenue, and impeachments of federal officers. They would also handle admiralty cases and cases where a foreigner was a party to the case.
Later, the delegates took away the power of trying impeachments, leaving that to Congress. They also added that the federal courts would handle cases that involved disputes between states.
The selection of judges was also a matter of debate. Although Madison’s Virginia plan initially proposed judges be selected by the legislature, the convention rejected that idea pretty decisively early on. Madison then pivoted his arguments at the convention toward giving that appointment power to the president. This ended up being included in the larger debate over the appointment of executive branch officials. In the end, judicial appointments ended up being the same as other appointment: the president would appoint and the Senate would confirm.
In the colonial era, many judges were appointed by crown authorities, and sat at the pleasure of those authorities. Most Americans did not like that practice since it made judges dependent on those who could remove them. In fact, one of the reasons for breaking with Great Britain in the Declaration of Independence “[the king] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
To help protect judicial independence from political leaders, the convention opted to give judges lifetime tenure. They gave some consideration to judges having a term of office, but the general consensus was that judges might try to curry favor if they had to be reappointed at some time. Delegates also explicitly added that judicial salaries could not be reduced during their tenure. If you could reduce a judge’s pay to almost nothing, it was the same as firing him as most could not afford to remain as judges without pay.
John Dickinson of Pennsylvania proposed giving the executive the ability to remove judges, subject to some confirmation by Congress. Sherman supported this. But several others, who had served as judges, men like Rutledge, and John Randolph of Virginia, argued that the power to remove judges for political reasons would destroy judicial independence. In the end, the convention decided that removal of judges had to be only for the same standards as removing the president, that is issues of treason, corruption, bribery, and other high crimes and misdemeanors. Removal would also require a two-thirds vote in the Senate to prevent factional majorities from misusing the impeachment process.
James Wilson of Pennsylvania advocated to give judges some power to review new laws. In Britain, a Council of jurists could block a new law from taking effect. This would ensure that all three branches had some say in laws before they went into effect. Nationalists like Madison disagreed. Judges were supposed to be arbiters of the law. If they had a say in making the laws, that would bias them when cases questioning the law came before the courts.
When I talked about presidential powers last week, I neglected to talk about veto authority. Much of the veto discussion involved either using judges or some special council to review and veto laws. In the end, that power was given to the president. Many argued that a veto should be absolute. The King in Britain had the power to veto any law and that would be the end of the discussion. Although several delegates, including Wilson, Hamilton, and Morris, supported this absolute veto, Opponents argued that it gave the president too much power. They allowed Congress to override a veto with a two-thirds vote in both houses. So if Congress overwhelmingly supported a measure, the president could not stand in the way.
Delegates also debated the idea of judicial review. Should judges be able to strike down an unconstitutional law? Gouverneur Morris and Madison, as well as others argued that it had to be an inherent power of judges. Madison used the example of ex post facto laws, that is making something a crime and then convicting a person who committed the act before it was a crime. The Constitution clearly barred that. If Congress tried to create an ex post facto law, the court certainly could not enforce it.
Others, like John Dickinson, argued against this power. It could be subject to abuse, giving judges an effective veto power of all laws. In the end, the final language did not explicitly address the question either way. However, only a couple of delegates ever spoke against judges having this authority.
For the most part, the convention did not get into the details of defining any crimes. The one exception to this was treason. Delegates feared that factions would arise so that those in the majority would accuse their rivals of treasons. Under British law, treason could mean a whole range of things that generally displeased the king. The framers tried to avoid that by explicitly defining treason as making war against the United States or giving aid or comfort to its enemies. At Benjamin Franklin’s suggestion, conviction would require testimony of at least two witnesses or a confession in open court. Further, punishment of treason would only apply to the individual, not his family, another break from British custom.
Full Faith and Credit
So, the three branches of government were set up in the first three articles of the Constitution, at least that was how the Committee of Detail set up the powers. There were still other things that needed to be covered. Article IV would cover how states interacted with each other. One was a requirement to give full faith and credit to decisions by other state governments. This actually came from the Articles of Confederation which required full faith.
The Constitution also guaranteed that citizens would be entitled to the privileges and immunities of citizens in all of the states. The fourth article also raised the issue of a person charged with a crime in one state and who fled to another. The Committee of Detail inserted this, nothing that such a person would have to be returned to the original state for trial. The New Jersey plan had included something similar, but it hadn’t really received much of any debate during the convention.
Once inserted however, it touched off a debate that had been avoided through much of the convention: slavery. In 1787, only a few states had begun the process of ending slavery in their states. But several states in the south, particularly South Carolina, were nowhere near ready to give up the institution, and wanted to make sure that the Constitution would not interfere with slavery.
Two delegates from South Carolina, Pierce Butler, and Charles Cotesworth Pickney, moved that slaves or indentured servants who fled bondage to another state must also be returned to their masters.
Delegates from free states were not ready to use the Constitution to outlaw slavery altogether. They knew that would blow up the convention and prevent probably all of the southern states from remaining in the Union. Even so, James Wilson of Pennsylvania objected to a constitutional provision which meant that the federal government, and possibly other state governments, would have to spend money and resources trying to return slaves. The government didn’t do that for horses or cows that fled their owners. Why would it have to do that for slaves?
In the end though, the southern delegates were adamant, near the end of August, Butler moved to insert a clause that anyone held to service or labor in one state, and who escaped, shall be delivered up to the person claiming that service or labor. The Convention agreed to this clause without a vote. There is speculation it was part of a larger compromise on other matters added on that same day.
The delegates also included a clause allowing congress the authority to admit new states based on whatever criteria they wanted, but did make clear that new states could not be taken from jurisdictions of existing states unless that state agreed to the matter. This was pretty uncontroversial, considered first in early June and never got much debate or dissent. To the extent there was some argument, it was mostly over the claims to western lands that some larger states might assert. Delegates eventually decided it would be up to others to decide the legitimacy of those claims.
They also added a clause allowing Congress to make laws for US territories that were not part of any other state. This was already what the Confederation Congress was doing in the Northwest Territory. They just had to add a proviso that this could not be used to prejudice any claims of territory by the US or its states.
The delegates also debated the insertion of a clause that the federal government would ensure that each state maintained a republican form of government and protected the existing laws of each state. Gouverneur Morris objected, raising concerns about some of Rhode Island’s laws that seemed to threaten basic property rights. Should the US government protect such laws?
In the end, delegates changed the wording to ensure that each state did have a republican form of government, meaning one elected by the people, and not a monarch or oligarchy. They left out any protection of existing state laws, but did guarantee protection to each state against foreign invasion or domestic violence. This was probably in direct response to the recent Shays rebellion in Massachusetts, and the inability of the Confederation Congress to do anything to restore order. Elbridge Gerry asked for a provision that the state government had to give permission for federal intervention. After some debate, the delegates agreed.
Amendments
The Convention also tackled the subject of amending the Constitution. The Articles of Confederation had required the unanimous consent of all states to make any such changes. That had proven impractical..
The Virginia plan had proposed that all amendments be proposed by the national legislature. As representatives of the people, this made sense to many. This didn’t get much debate until late August, after most other issues were resolved. When it did, some delegates argued that it should not be Congress, but rather the states, that would decide when a Constitutional Amendment was necessary. A resolution by John Rutledge called for the application of two-thirds of the state legislatures to call for a new convention to discuss changes to the Constitution. That was essentially how this Convention had come to be.
During debate in September the Committee of Style argued about who should be able to propose amendments. Gerry and Hamilton wanted Congress to have the ability to propose amendments. After all, they were the ones working under the Constitution and would mostly keenly feel the effects of any flaws. Others were concerned that if the states were suffering, the federal Congress might not be willing to make the necessary changes.
IN the end, the Convention agreed to include two possible ways to propose Amendments. One was with a two-thirds vote in both houses of Congress. The other would be if two-thirds of the states called for a convention to propose amendments. Once an amendment was proposed, at least two-thirds of the states must consent to it. Given some concerns about minorities being overruled, this was changed to require approval by three-quarters of the states.
There was still some concern. Smaller states remained hesitant that Amendments might be used someday to take away equal representation in the Senate. Eventually, the convention agreed that no state could ever be deprived of equal suffrage in the Senate without its consent
Another issue by the South Carolina delegation was concerned about federal power to prevent the importation of slaves. They wanted protection against that federal power. The overwhelming majority of delegates disagreed. That was an issue that would be left up to Congress. South Carolina, however, was adamant. In the end, they agreed that Congress would have no power to block the import of slaves for the next twenty years.
Debts
The Convention also debated the repayment of debts. The Virginia Plan had included a resolution that the new Congress would take on all the engagements of the Confederation Congress.
There was little debate that the new government should continue to repay the war debts incurred by the Continental Congress. After all, the need to find a way to repay those debts was one of the reasons many delegates wanted this new government.
There was, however, some debate over whether the new government should assume all the war debts that the individual states. In August Rutledge put forward a motion that would allow the government to take on those debts. A large faction of delegates, however, opposed the measure. Many states had made great efforts to pay down their debts already. Gerry made the point that states with relatively small remaining debts did not want to have the burden of paying down debts for states that had not made such an effort yet. Butler objected to paying the debts at all. He noted that speculators had purchased most of these notes, and he had not interest in paying off what he called “blood suckers.”
Although not in the record, Hamilton, a strong supporter of assuming state debts, spoke with Madison about the question outside the convention. Hamilton later told people that Madison agreed that the government should assume state debts, but had decided to leave that to the new administration to settle, and not put it in the Constitution. In the end, the Constitution only said that the new government would repay debts from the Confederation Congress, and left silent the matter of state debts.
Ratification
The final article proclaimed that this new Constitution would be established once the conventions of nine states ratified it. This was actually a pretty drastic step. Remember that originally, the Convention was supposed to make recommendations to be approved by the Confederation Congress. Such amendments under the Articles had to be unanimous.
In this process, the delegates ignored the Confederation Congress entirely, and sent it to the states. It even bypassed state legislatures, calling for state conventions of the people. They further required the effective support of only nine states, a two-thirds majority before the Constitution went into effect. That was a lower standard that was even required for amendments to this constitution.
This process made clear that the Convention was not just recommending even radical changes to the Articles. It was establishing an independent process to replace them without the consent of either the Confederation Congress or state legislatures.
Concluding the Convention
By early September the Convention delegates were exhausted from nearly four months of nonstop negotiating on this new document. Up until the very end, there were arguments over various clauses. On Saturday, September 8, the convention appointed a Committee of Style to draft the final version. William Johnson of Connecticut served as the chair, with Alexander Hamilton, Gouverneur Morris, James Madison, and Rufus King also serving.
Morris did most of the actual drafting. Hw wrote the preamble beginning “We the people…” and made most of the final wording choices. The Committee brought back a final document the following Wednesday. Even at that point, after all the debate, the delegates argued for last minute changes. The last significant one was to reduce the congressional override of a presidential veto from three-quarters to two-thirds.
The committee then printed copies for everyone the following day for a final review. Many delegates still were not happy. Elbridge Gerry, Edmund Randolph, and George Mason said they could not sign a document that lacked a bill of rights. Delegates spent the rest of the week reviewing the final document to make sure that no one had snuck in any changes.
On Saturday, September 15, the convention gave its approval to the final wording. The convention paid $30 to Jacob Shallus, an assistant clerk for the Pennsylvania State House, to draft and engross the final document. The document was written out on four pages and was ready for signing on Monday the 17th. Many delegates were still unhappy. There was a question as to how many of them would sign the final version.
Benjamin Franklin was asked to give final remarks. Franklin wrote out a speech, but was to sick to stand and address the delegates. Instead, he handed his speech to James Wilson who read it for him. Franklin conceded that the Constitution was not perfect and that he did not get everything he wanted. But the compromises that they had made were the best they could produce as fallible humans.
Franklin pointed out that any government would rely on the people who would soon administer the government to ensure it would work. He hoped it would be well administered for years, and that it would be a long time before the people became so corrupted as to need a despotic government. Delegates must rely on the people and the officials who would make up this new government to make it work.
Franklin ended by noting that he had raised his complaints about parts of the constitution during debate, but with the work done, he would support the final product and not make public anything that he thought should be different. He urged the delegates to sign this imperfect document as the best that men could produce.
Gouverneur Morris called on all delegates to sign, simply as witnesses to the unanimous consent of the states present. In the end, thirty-eight of forty one delegates signed. Mason, Randolph, and Gerry still refused. A thirty-ninth signature, that of John Dickinson had to leave the convention due to illness, but authorized fellow delegate George Read to sign on his behalf.
Delegates signed, grouped by states. Alexander Hamilton wrote the State names at the bottom of the document. With their work complete, the delegates went home.
Next week, we’ll see what the country thought as the people got their first look at this new document.
- - -
Next Episode 350 Creating a Judiciary, 1787 (coming soon)
Previous Episode 348 Creating Congress, 1787
 |
| Click here to donate |
 |
| Click here to see my Patreon Page |
An alternative to Patreon is SubscribeStar. For anyone who has problems with Patreon, you can get the same benefits by subscribing at SubscribeStar.
| Help Support this podcast on "BuyMeACoffee.com" |
Signup for the AmRev Podcast Mail List
Further Reading
Websites
The Virginia Plan: https://www.senate.gov/civics/common/generic/Virginia_Plan_item.htm
The New Jersey Plan: https://avalon.law.yale.edu/18th_century/patexta.asp
The Constitutional Convention of 1787: A Revolution in Government https://constitutioncenter.org/the-constitution/white-papers/the-constitutional-convention-of-1787-a-revolution-in-government
The Constitutional Convention of 1787: A Day by Day Account: https://www.nps.gov/inde/learn/historyculture/stories-constitutionalconvention.htm
Franklin closing speech to the convention: https://archive.csac.history.wisc.edu/assessments_64.pdf
Free eBooks
(from archive.org unless noted)
Secret Proceedings and Debates of the Convention Assembled at Philadelphia, in the Year 1787, Richmond; Wilbur Curtiss, 1839.
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Donovan, Frank R. Mr. Madison’s Constitution: The Story Behind the Constitutional Convention, New York: Dodd, Mead & Co. 1965 (borrow only)
Farrand, Max The Framing of the Constitution of the United States, Yale Univ. Press, 1913.
Farrand, Max (ed) The Records of the Federal Convention of 1787, Vol. 1, Vol. 2, and Vol 3, Yale Univ. Press, 1911.
Ford, Worthington, Chauncey The Federal Constitution in Virginia, 1787-1788. Cambridge: University Press, 1903.
Jameson, J. Franklin Studies in the History of the Federal Convention of 1787, Washington: Government Printing Office, 1903.
Madison, James Notes of Debates in the Federal Convention of 1787, Ohio Univ. Press, 1966.
McMaster, John Bach (ed) Pennsylvania and the Federal Constitution: 1787-1788, Historical Society of Pennsylvania, 1888.
Meigs, William M. The Growth of the Constitution in the Federal Convention of 1787, Philadelphia: J.B. Lippincott Co. 1900.
Richardson, Hamilton P. The Journal of the Federal Convention of 1787 Analyzed, San Francisco: Murdock Press, 1899.
Scott, James B. James Madison's notes of debates in the Federal convention of 1787, New York: Oxford Univ. Press, 1918.
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
Amar, Akhil Reed America’s Constitution: A Biography, Random House 2005.
Beeman, Richard R. Plain, Honest Men: The Making of the American Constitution, Random House, 2009.
Bowen, Catherine Drinker Miracle at Philadelphia: The Story of the Constitutional Convention, Little, Brown & Co. 1966 (borrow at archive.org).
Collier, Christopher Decision in Philadelphia: The Constitutional Convention of 1787, Random House, 1986 (borrow at archive.org).
Morris, Richard B. Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution, Holt, Rinehart & Winston, 1985.
Rossiter, Clinton 1787: The Grand Convention, Macmillan Co. 1966 (borrow on archive.org).
Smith, Page The Constitution: A Documentary and Narrative History, Morrow Quill, 1978.
Stewart, David O. The Summer of 1787: The Men Who Invented the Constitution, Simon & Schuster, 2007.
* As an Amazon Associate I earn from qualifying purchases.
