Celebrate Constitution Day By Exploring the 1787 Constitutional Convention Debates

Over the last several months, ConSource has detailed on our Blog the key debates that occurred during the Constitutional Convention in Philadelphia from May 25, 1787 to September 17, 1787. We hope you will join us in re-exploring the Constitutional Convention debates in honor of Constitution Day on September 17!

Below you will find a list of all of the posts we wrote based on records of the Convention proceedings, which are freely available in the ConSource digital library.

The Rule of Secrecy

The Virginia Plan

Early Debate on the Legislature’s Apportionment and the Three-Fifths Clause 

The New Jersey Plan

Hamilton’s Plan for a Strong Central Government

Tensions Run High Over Representation

Calling for Compromise

Celebrating Independence Day

The Gerry Committee Report

The Connecticut Compromise

Debates on the Election of the Executive

The Committee of Detail Report, A First Draft of the Constitution

The Slave Trade Debates

The Electoral College and The Presidency

Discussing Ratification and Signing the Constitution

There is an often-told story that at the end of the Constitutional Convention, Benjamin Franklin was approached by a group of citizens who asked him what sort of government the delegates had created. Franklin famously replied, “A republic, if you can keep it.” 

Democratic republics are not merely founded upon the consent of the people, they are also dependent on the active and informed involvement of citizens like you. 

Please consider supporting ConSource in its mission to facilitate greater access to and understanding of U.S. Constitutional History.

Happy Constitution Day!

The Constitutional Convention: Discussing Ratification and Signing the Constitution

By ConSource Staff

Towards the end of the Convention the delegates began discussing the method for ratification of the Constitution.  On August 31, the delegates voted to have the Constitution only govern over states that ratified it, by a vote of 9-1.  The delegates also debated how many states would need to ratify the Constitution in order for it to go into effect in those states.  Several proposals were made, including seven (a simple majority), as well as nine, ten, and thirteen.  After some discussion, the delegates agreed on nine, by a vote of 8-3.  This would become very important, as the ratification battles were hard fought and drawn out in several states. 

On September 15, the discussion turned to the final grievances with the Constitution of a few delegates, and the presentation of the Constitution to the public.  Daniel Carroll,[i] of Maryland, was concerned that no address to the people had been written to accompany the Constitution, and he considered this of great importance before adjourning the Convention.  He moved that a committee be appointed to write this address to the people.  Mr. Rutledge objected to this motion on the grounds that it presented an unnecessary delay, and would be improper because the Constitution had not yet been approved by the state conventions.  The motion of Mr. Carroll was voted down, 6-4.

Mr. Randolph and Mr. Mason still had significant doubts about the Constitution, and made a motion to include, “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.”  This would require that another Convention of all the state delegations meet, after the individual state conventions had an opportunity to discuss the Constitution and list objections and potential amendments.  Mr. Randolph expressed that if this proposition was disregarded, he would refuse to sign the Constitution as it stood.  Mr. Mason concluded that the structure of the proposed government “would end in either monarchy, or a tyrannical aristocracy.”  Mr. Mason went on to say,

Because the 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.

Mr. Pinckney disagreed with the call for a second Convention after the states proposed amendments, saying, “Nothing but confusion and contrariety could spring from the experiment.  The States will never agree in their plans … Conventions are serious things, and ought not to be repeated.”  On the question of the proposition by Mr. Randolph for a second Convention, all states voted against, and on the subsequent question to agree to the Constitution as amended, all of the states approved. 

On the last day of the Convention, September 17, the Constitution was read for the whole Convention.  Dr. Franklin prepared a speech, read by Mr. Wilson, in which he expressed confidence in the Constitution, despite not agreeing to every aspect of it.  The speech went on to extol the virtues of the document, and what a great achievement its drafting was, saying,

I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies. 

Dr. Franklin went on to implore all of the delegates present to sign the Constitution to give the signing a sense of unanimity.  Only three members, of the forty-one present, refused to sign the document, Mr. Randolph, Mr. Mason, and Mr. Gerry.  Mr. Randolph and Mr. Mason’s objections had been previously expressed, and Mr. Randolph made a prediction that “nine state will fail to ratify the plan and confusion must ensue.”  Mr. Gerry stated eleven objections to the Constitution as it stood, but focused on three which he found to be particularly important. These objections were against, the necessary and proper clause, the power to raise armies and money without limits, and the ability to establish a tribunal without juries in civil cases.

During the signing of the Constitution, Dr. Franklin, looking towards the sun behind the President’s chair, at the back of the Convention, remarked that,

Painters had found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.

The members of the Convention then adjourned for the last time, and after almost four months of debate and drafting, they took leave of the Pennsylvania State House and dined together at City Tavern.  Their duties in service of the Constitution were far from over, however, as many of these delegates would go on to become prominent Federalists in the fight for ratification.

[i] Delegate from Maryland who supported a strong central government and direct election of the legislature.  He authored the clause stating that powers not expressly granted to the federal government would be reserved for the states.

Tune in to a Live Webcast of Justice Ginsburg’s Constitution Day Talk on 9/12

Celebrate Constitution Day with ConSource, The Institute for Constitutional History at the New-York Historical Society and the George Washington University Law School. 

Tune in to a live webcast of U.S. Supreme Court Justice Ruth Bader Ginsburg’s Constitution Day Remarks on Friday, September 12, 2014 at 1 p.m. ET: http://bit.ly/1ystgOc.

The Constitutional Convention: The Electoral College and The Presidency

By ConSource Staff

The issues of the method of election and term length of the executive were consistently debated at the Convention, and the delegates had varying views on what the Presidency would entail.  On August 24, the Convention took up Article X, Section one of the Committee of Detail’s report, which laid out a plan for one executive, elected by ballots in the legislature.  The delegates agreed to have one executive, but could not agree on the method of election.  Three subsequent motions for different election plans were proposed.  First, a motion to change election “by the legislature” to, election “by the people,” failed by a vote of 9-2.  Second, a motion proposing, “each State having one vote,” in election of the President, failed 6-5.  Lastly, Mr. Morris moved that the President “shall be chosen by Electors to be chosen by the people of the several States.”  This motion was also voted down, 6-5.

On August 31, the Convention had reached an impasse concerning several issues that had been postponed and were not yet resolved.  Roger Sherman proposed that the Convention appoint a committee to negotiate and compromise on postponed or unfinished matters.  This committee was known as the Committee on Unfinished Parts (or the Brearley Committee) and was made up of eleven members, one from each state represented at the Convention.[i]  Among the postponed matters left to the Committee was the method for electing the President.

On September 4, Mr. Brearley made the report of the Committee on Unfinished Parts to the whole Convention.  The Convention took up proposal four of Article X, Section one, on the election of the executive.  Considered the Committee’s most important work, this proposal invented the Electoral College mechanism for selecting the president.[ii]  The specifics of the proposal included, the addition of a Vice President position for the candidate who received the second most votes, four year terms allowing for eligibility for more than one term, and a system where,

Each state shall appoint in such a manner as its Legislature shall direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature.

This method of indirect election by electors chosen by the states, rather than by a sitting Congress that could be influenced by the current President, helped to remove the danger of corruption.[iii] 

The central criticism of the proposal surrounded the stipulation that, “if no person have a majority [of votes], then from the 5 highest on the list the Senate shall choose by ballot the President.”  Several delegates were fearful that it would be unlikely that one candidate would receive a majority of the votes, thus giving the Senate the immense power of being able to consistently choose the president.  Mr. Sherman was concerned that in some cases, “the election would in fact be consigned to the Senate altogether.  It would have the effect at the same time, he observed, or giving the nomination of the candidates to the largest States.”  

Mr. Wilson had some favorable things to say about the proposal, and was glad that it removed the possibility of corruption or collusion in voting, as electors would be spread across the country, and that it allowed the executive more than one term in office.  He, however, would have preferred to allow the whole Legislature to choose the President if no one candidate received a majority of the votes, and that they should have to choose from a smaller number than five candidates.

On September 5, Mr. Rutledge stressed that this proposal would grant the Senate far too much power, and proposed a return to the original plan for election by the legislature, with the executive holding office for only one term of seven years.  This was voted down 8-2-1, with only North Carolina and South Carolina supporting the motion.  

Mr. Mason predicted that the current President would always be among the top five candidates in the next election, therefore his reappointment would always rest on the Senate, and could result in presidents serving for life.  To avoid this outcome, Mr. Mason and Mr. Williamson proposed altering the draft so that the candidate who received the highest number of votes would become President, whether or not they received a majority of the votes, thus removing the Senate’s role in choosing the president.  This proposal was never brought to a formal vote, but the concern and skepticism about the Senate’s role in choosing the president was prevalent among the delegates.

On September 6, the discussion of the election of the president continued, and a series of votes were taken.  The Convention voted to have the President serve a four-year term, with only North Carolina voting against.  On the question of appointing the President through an indirect system with electors, the motion passed, by a vote of 9-2, with only North Carolina and South Carolina opposed.  The delegations also voted, 8-3, that “the election shall be on the same day throughout the United States,” in order to prevent any corruption.  Mr. Sherman suggested that the House of Representatives replace the Senate in the case that no candidate receives a majority of the votes, so that the provision in question would read, “The House of the Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote.”  Mr. Mason preferred this method because it was less aristocratic than relying on the Senate.  This motion passed, by a vote of 10-1, with only Delaware voting against.

The invention of the Electoral College was one of the Convention’s most innovative achievements, and due to its complexity it would have been unlikely to come about through the debate of the full Convention.[iv]  The Committee on Unfinished Parts conceived this novel idea, and its members, Mr. Morris and Mr. Brearley especially, convinced the full Convention of its justifications and benefits.[v]

[i] The Committee included Nicholas Gilman of New Hampshire; Rufus King of Massachusetts; Roger Sherman of Connecticut; Jonathan Brearley of New Jersey; Gouverneur Morris of Pennsylvania; John Dickinson of Delaware; Daniel Carroll of Maryland; James Madison, Jr. of Virginia; Hugh Williamson of North Carolina; Pierce Butler of South Carolina; and Abraham Baldwin of Georgia.

[ii] John R. Vile, The Critical Role of Committees at the U.S. Constitutional Convention of 1787, 48 Am. J. Legal Hist. 147, 170 (2006).

[iii] Id.

[iv] Id at 171.

[v] Id.

Announcing the Third Annual Harlan Institute - ConSource Virtual Supreme Court Competition for High School Students

Building on the success of the 2013 and 2014 Virtual Supreme Court project, the Harlan Institute and The Constitutional Sources Project (ConSource) will host the third annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Zivotofsky v. Kerry, exploring whether the President’s power to diplomatically recognize foreign nations is subject to control by Congress. 

The competition is endorsed by the Center for Civic Education’s We The People Program. Robert Leming, Director of the We the People Program found that the “Competition is relevant for high school students studying the Constitution and Bill of Rights.”

ConSource Executive Director Julie Silverbrook believes “the Competition is an excellent opportunity for high school students to develop core civic and constitutional literacy skills. Students are required to read the text of the Constitution, explore the history behind a contemporary constitutional dispute, and construct persuasive arguments. We know that experiences like the Virtual Supreme Court Competition leave a lifelong impression on participating students and encourages them to stay informed and engaged throughout their lives.” 

The members of the grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2015. Winners must be at least 18 years old at the time of the trip (it is no problem if the student has already graduated high school in September of 2015, so long as he or she was in high school during the competition). This offer is open to U.S. residents only. Members of the runner-up team will each receive an iPad Mini. Members of the third and fourth place teams will each receive a $100 Amazon.com Gift card.

Josh Blackman, President of the Harlan Institute, champions the Virtual Supreme Court, which provides an “unprecedented opportunity for high school students to engage in the highest level of appellate advocacy. They research the issues, write briefs, and make oral arguments before our judges. The strong caliber of the winning teams last year really impressed us. We can’t wait to see how the teams perform this year!”

 Teachers interested in participating should sign up at www.HarlanInstitute.org, add an account, read the problem, and get started! 

Please send any questions to info@harlaninstitute.org or info@consource.org.     

The Constitutional Convention: The Slave Trade Debates

By ConSource Staff

The issues of the slave trade and import taxation were among the most divisive of the Convention, separating the delegates by region.[i]  Delegates from South Carolina and Georgia were insistent that their states would never ratify a constitution that abolished the slave trade or placed burdensome tax disincentives on it.[ii] 

On August 6, the Committee of Detail delivered their report, Section four of which stated,

No tax or duty shall be laid by the Legislature…on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration of importation be prohibited.

This proposal was very favorable to slave importing states, as it prevented Congress from prohibiting or taxing the importation of slaves.  This resulted from demands of the North Carolina, South Carolina, and Georgia delegations, and was seen as a practical consideration for compromise, rather than an endorsement of the slave trade.

On August 8, Mr. Morris delivered a passionate speech condemning slavery as a “nefarious institution,” and saying that it brought, “the curse of heaven on the States where it prevailed.”  He maintained that slaves should not be counted in the apportionment of the legislature, asking,

Upon what principle is it that the slaves shall be computed in the representation?  Are they men?  Then make them Citizens and let them vote?  Are they property?  Why then is no other property included?

Mr. Morris found it quite perverse that,

The inhabitant of Georgia and South Carolina who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondage, shall have more votes in a Government instituted for protection of the rights of mankind, than the citizen of Pa. or N. Jersey who views with laudable horror, so nefarious a practice.

Mr. Morris’ motion to remove the three-fifths clause and count only “free inhabitants” for apportionment failed, by a vote of 10-1, but his impassioned argument showed that the debate over the slave trade was not resolved by the report of the Committee of Detail.

On August 21, the Convention returned to the issue of slavery, and more specifically, to the Committee of Detail’s proposal concerning the slave trade.  Luther Martin proposed to alter Article VII, Section 4 of the Committee’s report to allow for the prohibition or tax on the importation of slaves.  He felt this was necessary because,

1.  As five slaves are to be counted as 3 free men in the apportionment of Representatives, such a clause would leave an encouragement to this traffic.  2.  slaves weakened one part of the Union which the other parts were bound to protect:  the privilege of importing them was therefore unreasonable – 3.  it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.

Mr. Rutledge disagreed, saying,

Religion and humanity had nothing to do with this question – Interest alone is the governing principle with Nations – The true question is whether the Southern States shall or shall not be parties to the Union.  If the Northern States consult their interest, they will not oppose the increase of Slaves which will increase the commodities of which they will become the carriers.

Mr. Pinckney expressed that South Carolina would never agree to a plan if it prohibited the slave trade, and believed that every state should decide for themselves whether to allow the slave trade and the institution of slavery.

The next day, Mr. Sherman resumed the discussion for leaving the slave trade clause as it stood.  He disapproved of the slave trade, but felt that the public good did not require it to be abolished, and that it would be more expedient to have as few objections to the proposed Government as possible.  Mr. Mason found the slave trade to be evil and nefarious, and argued that it would lead to violent slave revolts, discouraging of immigration of Europeans, refusal of freemen to do manual labor, and a depression of manufacturing and arts.  Mr. Pinckney countered this, saying that slavery was justified by the example of the world, and citing examples of modern states with slavery.  He maintained that the continued importation of slaves in a few Southern States would benefit the economy of the entire Union.  Mr. Pinckney also proposed, in order to make the clause more agreeable, to include a provision making the slave trade subject to equal taxation with other imports.  Mr. Morris suggested that the whole subject be given to a committee to “form a bargain among the Northern and Southern states.”  The motion to commit the question was approved 7-3-1, and the Committee of Eleven (also known as the Committee of Slave Trade) was formed.[iii]

On August 24, The Committee of Eleven delivered their report, suggesting to 

strike out so much of the 4th section as was referred to the committee and insert – “The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800, but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports.”

The following day, the report of the Committee was taken up, and Mr. Pinckney moved to change the year allowing for the limitation or abolition of slave trade from 1800 to 1808.  Mr. Madison believed that twenty years was too long, and would be “more dishonorable to the National character than to say nothing about it in the Constitution.” 

Mr. Pinckney’s motion passed 7-4, with New Jersey, Pennsylvania, Delaware, and Virginia voting against, because they believed 1808 to be too compromising.  

[i] John R. Vile, The Critical Role of Committees at the U.S. Constitutional Convention of 1787, 48 Am. J. Legal Hist. 147, 167 (2006).

[ii] Id.

[iii] The Committee of Eleven was made up of Mr. Langdon, Mr. King, Mr. Johnson, Mr. Livingston, Mr. Clymer, Mr. Dickinson, Mr. Martin, Mr. Madison, Mr. Williamson, Charles Cotesworth Pinckney, and Mr. Baldwin.

The Constitutional Convention: The Committee of Detail Report, A First Draft of the Constitution

By ConSource Staff

On July 23, the Convention decided unanimously to appoint a Committee of Detail consisting of five members to draft a revised version of the current resolutions.  The following day, the delegates were chosen. The Committee of Detail was made up of Mr. Rutledge, Mr. Randolph, Mr. Gorham, Mr. Ellsworth, and Mr. Wilson.  Each member of the committee was a lawyer and was familiar with drafting legal documents, and utilized this experience in preparing a draft of the Constitution.[i]  The delegates believed a smaller committee of only five members would be more appropriate to do more detail oriented editorial work.[ii] 

Mr. Randolph expressed two principles that guided the work of the committee.  First, that they would only include the essential principles of the Constitution, so the Convention would not become too bogged down in the minute details.[iii]  Second, that they would use specific and precise language, according to the example set by many of the state constitutions.[iv]

The Committee of Detail penned nine documents, with the final draft having a preamble and twenty-three articles.[v]  This draft, penned by James Wilson, was the first draft that resembled our Constitution.  Instead of simply elaborating on the existing resolutions of the Convention, the Committee arguably redefined the constitutional balance of federalism by increasing the rights of states.[vi]  Despite never being agreed to in the whole Convention, the Committee report listed an enumerated set of powers for the national legislature, including the powers to collect taxes, regulate commerce with foreign nations and among the several states, and coin money, among others.  This limited the powers of the legislature, because the delegates likely wrote this under the assumption that the powers not enumerated would be granted to the states.[vii]

The Committee report similarly granted the judicial branch enumerated jurisdiction over cases arising under federal law, those affecting ambassadors, trials of impeachment of Unites States’ officers, all cases of maritime jurisdiction, controversies of two or more States, between a State and citizens of another state, between citizens of different states, and between a State or citizens of that state and a foreign State or citizens.  This was opposed to the more general grant of jurisdiction over questions that “involve the national peace and harmony,” that was previously discussed.[viii]

The Committee report also called for more specific states’ rights, including giving states the responsibility for paying members of Congress, permitting states to choose the time and place of congressional elections, and allowing states to set uniform property qualifications for their representatives in Congress.[ix]

To understand why the Committee of Detail called for the enhancement of states’ rights, it is necessary to look at the political ideology of each member of the Committee.  Mr. Ellsworth and Mr. Rutledge actively supported states’ rights during the Convention.[x]  Mr. Randolph and Mr. Wilson favored a strong national government, but one with an enumerated scheme of powers rather than general grants of power.[xi]  Mr. Gorham, on the other hand, consistently argued for greater national powers, but he was outnumbered on the Committee and was willing to compromise.[xii]

On August 6, the Convention returned from its ten-day adjournment.  Mr. Rutledge delivered the report of the Committee, and a printed copy was delivered to each member of the Convention.  The Convention then adjourned to read the report and prepare to discuss it the following day.

On August 7, the report of the Committee of Detail was taken up by the Convention.  The delegations agreed to the preamble and on Articles I and II, which gave the government the title of “The United States of America” and said it would consist of a legislative, executive, and judicial branch.  The delegates agreed to some minor changes in wording, and to delete some phrases they found to be redundant, but the report was not scrutinized in a substantial way.  Over the next few weeks the delegates embraced most of the report with little debate, likely due to the fact that the Convention was entering its fourth month and the delegates felt pressure to compromise.[xiii]  In order to expedite the process of working out the details of the Constitution, the Convention employed committees ten times in August and September to negotiate compromises.[xiv] 

The importance of the work of the Committee of Detail cannot be overstated, and it was clearly approved of by the Convention because, on August 18 and August 20, the Convention sent a number of additional proposals for congressional power to the Committee of Detail, making it somewhat of a standing committee.[xv]  The Committee reported back on August 22, including some, but not all of the provisions recommended.[xvi]  The Committee of Detail report represented great progress in working towards a final Constitution for ratification, but other issues like the slave trade were still passionately being debated, as we will discuss in the next ConSource blog post. 

[i] John R. Vile, The Critical Role of Committees at the U.S. Constitutional Convention of 1787, 48 Am. J. Legal Hist. 147, 163-64 (2006).

[ii] Id.

[iii] Id.

[iv] Id.

[v] John C. Hueston, Altering the Course of the Constitutional Convention:  The Role of the Committee of Detail in Establishing the Balance of State and Federal Powers, 100 Yale L.J. 765, 769 (1990-1991).

[vi] Id.

[vii] Id at 770.

[viii] Id at 771.

[ix] Id at 773.

[x] Id at 775.

[xi] Id at 776.

[xii] Id at 777.

[xiii] Id at 778-79

[xiv] Id at 780.

[xv] John R. Vile, The Critical Role of Committees at the U.S. Constitutional Convention of 1787, 48 Am. J. Legal Hist. 147, 166 (2006).

[xvi] Id.

The Constitutional Convention: Debates on the Election of the Executive

By ConSource Staff

After the Connecticut Compromise was agreed upon, the Convention shifted focus from the legislature to the executive and judicial branches.  On July 17, the Convention discussed the structure and election of the executive branch of government.  The delegates agreed that the national executive should consist of one person, without vote or further discussion.

The debate then turned to whether the executive would be elected directly by the people, or would be chosen by the legislature.  Mr. Morris argued that election by the legislature gave the national legislature too much power, and the president ought to be elected by the people at large.  Mr. Sherman disagreed, maintaining that the “sense of the nation would be better expressed by the Legislature, than by the people at large.”  Mr. Pinckney argued that the legislature would choose the best executive, because they would want to see that the laws they passed would be properly executed. The Convention voted down the proposal to have the executive elected by the people rather than the legislatures, with only the Pennsylvania delegation supporting the motion.

Mr. Martin then moved that the executive be chosen by “Electors appointed by the several Legislatures of the individual states.”  This was voted down, 8-2, but would resurface in later debates.  The following motion, for the executive “to be chosen by the National Legislature,” passed unanimously.  Lastly, the Convention debated the length of the term of the presidency, and whether the president would be eligible for re-election.  Madison argued that it was,

essential to the preservation of liberty that the Legislative, Executive, and Judiciary powers be separate…The Executive could not be independent of the Legislature if dependent on the pleasure of that branch for a re-appointment…a dependence of the Executive on the Legislature, would render [the Legislature] the Executor as well as the maker of laws, & then according to the observation of Montesquieu, tyrannical laws may be made.

For this reason, Madison did not wish the executive to be eligible for a second term, where he would be subject to re-appointment by the legislature.  These issues, could not be agreed upon, and were postponed for further discussion.

On July 18, the delegations unanimously agreed to allow for an executive veto, which could be overridden by a two-thirds majority vote in the legislature, without a vote or further debate.  The Convention also voted to postpone discussion of the eligibility of the executive to serve multiple terms.

On July 19, Mr. Randolph made the compelling point that if the president were subject to re-election by the legislature, he would have no check on the legislature, and would not use the veto power out of fear that the legislature would vote him out of office at the end of his term.  Mr. Wilson argued that if the president were to be eligible for multiple terms, he cannot be appointed by the Legislature.  Wilson “perceived with pleasure” the sense that indirect election by the people was gaining ground, an idea that he had been espousing throughout the Convention.[i]  Mr. Ellsworth moved that the Executive should be appointed by electors, which passed 6-3-1, and that the electors should be chosen by the State legislatures, which also passed 8-2. 

The debate then returned to whether the executive would be eligible for a second term.  Mr. Martin and Mr. Williamson argued that the executive should not be allowed to serve more than one term because the electors would be liable to undue influence.  The Convention subsequently voted 8-2, to allow the executive to be eligible for multiple terms.  This was likely due in large part to the independence from the legislature created by the indirect election of the executive.

On July 20, the debate turned to whether the executive should “be removable on impeachment and conviction for malpractice or neglect of duty.”  Mr. Pinckney and Mr. Morris moved to strike the impeachment provision from the resolution, arguing that the executive should not be subject to impeachment while in office.  Mr. Wilson contended that the impeachment provision was a necessity to ensure the good behavior of the executive.  Dr. Franklin agreed, saying he favored the impeachment provision because he saw it as the best way to prevent the recourse of assassination attempts against an executive who has committed serious misconduct.  Mr. Randolph believed the provision was essential because the executive would have great opportunities to abuse his power, and there must be some possibility for punishment in the event he does so.  The Convention voted to include the provision that the executive shall be removable by impeachment, by a vote of 8-2, with only Massachusetts and South Carolina against.

Despite these days of negotiation and compromise, the Convention backtracked and, on July 24, moved to reconsider the previous vote to have the executive chosen by electors.  Mr. Williamson proposed, “going back to the original ground; to elect the Executive for 7 years and render him ineligible a 2nd term.”  He believed that ineligibility for a second term was the best way to prevent an executive from attempting to become a King.  On the question for reinstating the election of the executive by national legislature, the Convention voted to approve it 7-4. 

Some delegates who preferred that the executive be limited to one term proposed a longer term.  Mr. King even suggested that a term as long as 20 years would be agreeable.  Recognizing the varied opinions and unlikelihood of persuasion in the whole Convention, the delegates decided to appoint a Detail Committee consisting of five members to draft a revised version of the current resolutions.  The Detail Committee was made up of Mr. Rutledge, Mr. Randolph, Mr. Gorham, Mr. Ellsworth, and Mr. Wilson.  Each member of the committee was a lawyer and was familiar with drafting legal documents, and utilized this experience in preparing a draft of the Constitution.[ii]

On July 26, the Convention continued the discussion on the election of the executive, and approved a motion for a seven-year term with no re-election, by a vote of 7-3-1.  The entire resolution on the executive, as amended, read,

that a National Executive be instituted – to consist of a single person  - to be chosen by the National Legislature – for the term of seven years – to be ineligible a 2nd time – with power to carry into execution the national laws – to appoint to offices in cases not otherwise provided for – to be removable on impeachment & conviction of malpractice or neglect of duty – to receive a fixed compensation for the devotion of his time to the public service, to be paid out of the National Treasury.

The Convention passed this resolution in the affirmative, by a vote of 6-3-1.  The Convention then unanimously voted to adjourn until Monday, August 6, so that the Detail Committee might have time to prepare a report and draft of the Constitution.  With the varied opinions over term length and eligibility for re-election, it would be over a month before the Convention agreed on the four-year renewable term of our Presidency.

[i] William Ewald, James Wilson and the Drafting of the Constitution, 10:5 U. Pa. J. Const. L. 901, 949 (2008), available at https://www.law.upenn.edu/cf/faculty/wewald/workingpapers/10UPaJConstL901(2008).pdf.

[ii] John R. Vile, The Critical Role of Committees at the U.S. Constitutional Convention of 1787, 48 Am. J. Legal Hist. 147, 163-4 (2006).

ConSource Interns Visit the National Portrait Gallery’s American Origins Exhibit

Last Friday, the ConSource interns visited the National Portrait Gallery’s American Origins exhibit. In what follows, our interns spotlight a historical figure whose portrait caught their attention.

Lucretia Mott, 1793-1880

By Sarah Duska, the College of William & Mary

On Friday, at the National Portrait Gallery, I was amazed at all of the amazing historical figures lining the walls. I was especially impressed by the portrait and description of Lucretia Mott because of her work and energy in controversial issues during a time when women were extremely limited. Mott was born in the year 1793 and lived until 1880.[i] She was alive for the signing of the Constitution of the United States, a document that did not and would not allow her and other women the right to be equal citizens; Mott would not have the chance to vote or be considered, in any aspect, equal to man before her death. Mott went to school, run by the Society of Friends, and following graduation became a teacher.[i] Her interest in women’s rights was sparked when she realized that the men teaching at the school were paid twice as much as the female educators.[ii] Mott was not only interested in women’s rights, but she also had anti-slavery sentiments. Mott became a Quaker minister and her sermons preached about the evil of slavery.[iii] She helped found the Philadelphia Female Anti-Slavery Society with which she raised support and awareness of the anti-slavery movement.[iv] Even though a woman’s activeness in society was improper and inappropriate, Mott continued to be a leading activist. Perhaps what Mott is most known for is her collaboration with Elizabeth Stanton in organizing the Seneca Falls Convention in 1848—the first public women’s rights meeting in the United States—where women’s suffrage became the focus of the women’s right movement.[ii] Mott dedicated her life to the abolitionist and women’s civil rights movements. She was an influential and unrelenting force who got to witness the emancipation of slaves and who contributed to the beginning of the women’s rights movement that would eventually lead to the 19th amendment—establishing women as equal citizens. 

[i] United States. National Park Service. “Lucretia Mott.” National Parks Service. U.S. Department of the Interior, 25 June 2014. Web. 20 July 2014.

[ii] Victoria. “Lucretia Mott.” Lucretia Mott. N.p., n.d. Web. 21 July 2014.

[iii] ”Lucretia Mott.” Bio. A&E Television Networks, 2014. Web. 21 July 2014.

[iv] ”Philadelphia Female Anti-Slavery Society Historical Marker.” Explore PA History. Historical Marker, 2011. Web. 21 July 2014.

David Rittenhouse

By Taylor Sneed, the University of Pennsylvania

David Rittenhouse was a prominent figure in Philadelphia, Pennsylvania. He was born in the historical city and left a long standing legacy as one of the leading American scientists of his time. The University of Pennsylvania has a science laboratory named in his honor and one of the central parks in Philadelphia is named, Rittenhouse Square. Rittenhouse was extremely active in the Philadelphia community; he was an elected member of the Pennsylvania Constitutional Convention, thus partaking in framing the Pennsylvania Constitution of 1776[1]. The Pennsylvania Constitution was the first state Constitution in America and it was the most liberal of the era.

David Rittenhouse’s achievements in Pennsylvania caught the attention of various politicians, including Thomas Jefferson, Benjamin Franklin, as well as George Washington. It was Washington who awarded the title to Rittenhouse as the first Director of the United States Mint.[2] With this title Rittenhouse had a large influence over the history of American coinage. David Rittenhouse’s portrait is displayed in the National Portrait Gallery among a vast amount of influential figures in American history.

[1] Penn Biographies by the University of Pennsylvania

[2] Mary Yurick’s David Rittenhouse 

"PENN BIOGRAPHIES." David Rittenhouse (1732-1796), University of Pennsylvania University Archives. University of Pennsylvania Archives & Records Center, n.d. Web. 21 July 2014.

Yurick, Mary, and Lindley Homol. “David Rittenhouse.” David Rittenhouse. Penn State University Libraries, Fall 2009. Web. 21 July 2014.

Andrew Jackson:  Expansion of Presidential Power

By Michael Laurino, The George Washington University Law School

Andrew Jackson’s expansion of the powers of the presidency began a period that culminated in the strong modern presidency that evolved in the twentieth century.[i]  Jackson’s use of the veto power, both on constitutional and policy grounds, marked the growing strength of the president that was less evident among the six prior presidencies.[ii]   Jackson emphasized the belief that the president was a direct representative of the people, and used this claim to reinforce his decisions whether they were vetoes for policy reasons, removal of Cabinet Secretaries, or presidential interpretation of the constitution.[iii]

Jackson argued that the Congress, President, and Supreme Court must each be guided by its own opinion of the constitution.[iv]  Therefore, Jackson believed it to be his responsibility to sign or veto legislation based on his own interpretation of the bill’s constitutionality, rather than deferring to the Supreme Court for constitutional interpretation.[v]  This view, and the actions resulting from it, earned Jackson the nickname “King Andrew I” from his opposition party, the Whigs.[vi]  Jackson’s position on constitutional interpretation manifested itself in his refusal to enforce the Supreme Court’s decision in Worcester v. Georgia, which sought to uphold a treaty the Cherokee tribe negotiated with the federal government.[vii] In many ways, especially concerning the veto power and the president’s power to remove executive officers, Jackson led the way for the unitary powers of the modern presidency.

[i] Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1526 (1997).

[ii] Id.

[iii] Leonard B. White, The Jacksonians: A Study in Administrative History 1829-1861 23-28 (1954).

[iv] Id.

[v] Id.

[vi] Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1529 (1997).

[vii] Worcester v. State of Ga., 31 U.S. 515, 8 L. Ed. 483 (1832).


Gouverneur Morris

By Karl Hagnauer, Georgetown University Law Center

Gouverneur Morris’ outsized influence on the Constitution is not matched by public recognition today. While names such as James Madison and Alexander Hamilton resonate with even the most casual student of American history, mention Gouverneur Morris and you are likely to be met with blank stares. Born in 1752 in New York, Morris’ service as a delegate in the Continental Congress and eventually the Constitutional Convention merits greater acknowledgement. As a representative from Pennsylvania, Morris served as chairman of the Committee of Style, overseeing the entirety of the text of the Constitution, including the formulation of the Preamble that so many recite today. While Morris was an advocate of assuring a preeminent place for propertied interests in the new government, he decried slavery and pushed for the insertion of language in the Constitution guaranteeing religious liberty. As a strong advocate of a powerful central government, Morris was a natural ally of the ideas expressed in the Federalist Papers and of those pushing for ratification. After serving as the United States’ minister to France following ratification of the Constitution, Morris briefly represented New York in the Senate before going on to chair the Erie Canal Commission. He died in 1816, leaving behind a legacy as one of America’s most influential Founding Fathers. 

The Constitutional Convention: The Connecticut Compromise

By ConSource Staff

By mid-July the Convention had been meeting six days per week for over six weeks, and still had not come to an agreement concerning representation in the two houses of the national legislature.  This issue had proven to be divisive, pitting small-states against large-states in the debate over proportional representation versus equal representation, and northern states against southern states regarding how to count slaves for the purposes of representation and direct taxes.[i]  In late June, several delegates, including Benjamin Franklin feared that these divisions could lead to the disbandment of the Convention and the dissolution of the Union altogether.[ii]  Some compromises were eventually agreed to including the vote to have monetary bills originate in the first branch, and the vote to “allow each State one vote in the 2nd branch [of the legislature].”

The Convention, however, could not reach an agreement on the ratio for the proportion of inhabitants to representatives in the first branch of the legislature, and committed this issue to the Committee of Five.[iii]  On July 9, Gouverneur Morris delivered the Report of the Committee of Five, which suggested approval of the Gerry Committee ratio of representation in the first branch, as to one representative for every 40,000 inhabitants, and 56 representatives overall.  This could not be agreed upon by the delegations, and the issue was committed to another committee, made up of one delegate from each state.[iv] 

On July 10, Rufus King reported from the Committee that 65 members should represent the States in the first meeting of the legislature.  Delegates from the Southern States had qualms with this plan, as the majority of those nine additional representatives would go to northern states, and they felt the wealth of the South was not being adequately represented.  Madison suggested doubling the number of delegates from each state, but this motion failed, largely due to the increased expense this would entail.  The Convention voted 9-2, to approve the amended apportionment of representatives made by the committee.

On Wednesday July 11, Edmund Randolph moved for “requiring the Legislature to take a periodical census for the purpose of redressing inequalities in the Representation.”  Hugh Williamson[v] proposed that a comprehensive census be taken once every year to determine the population in each state.  The frequency of the census could not be agreed upon, but the delegates voted on the first clause of Mr. Williamson’s motion, to have a census of free inhabitants taken when the government was formed.

Mr. Butler and General Pinckney insisted that slaves be included in the rule of representation, and that they be counted equally along with free inhabitants, thus removing the three-fifths clause.  Mr. Butler explained this, saying,

the labour of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts, that as wealth was the great means of defence and utility to the Nation they are equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property, and was itself to be supported by property.

Mr. Mason refused to accede to the motion, despite representing the slave state of Virginia, because he believed it to be unjust.  Mr. Butler’s motion was voted down by a vote of 3-7, with only Delaware, South Carolina, and Georgia supporting it. 

Mr. Wilson did not believe that slaves should be counted at all towards the rule of representation.  He argued that they were not citizens, and if they were being counted as property, “why is … other property [not] admitted into the computation?”  Mr. Morris expressed that he was forced to face the dilemma of doing injustice to either the Southern States or to his human nature, and he had to choose the former.  He went on to say,

he could never agree to give such encouragement to the slave trade as would be given by allowing them a representation for their negroes, and he did not believe those States would ever confederate on terms that would deprive them of that trade.

The next day, William Davie[vi] suggested that if the Southern States were deprived of any share of representation for their slaves they, “would never confederate on any terms.”  Mr. Ellsworth moved,

that the ruled of contribution by direct taxation for the support of the Government of the United States shall be the number of white inhabitants, and three fifths of every other description in the several States, until some other rule that shall more accurately ascertain the wealth of the several States can be devised and adopted by the Legislature. 

At the end of the day’s proceedings, the Convention voted 6-2-2, to include the three-fifths clause for determining direct taxation and representation in the first branch of the legislature.  The delegations also voted 8-2, to conduct a census for determining representation every 10 years.

On July 14, Luther Martin called for the question of the whole report of the Gerry Committee to be debated and voted on as amended.  Before this vote, Elbridge Gerry called attention to the idea that the future Western states could present dangers to the original 13 states.  Mr. Gerry  “thought it necessary to limit the number of new states to be admitted into the Union, in such a manner, that they should never outnumber the Atlantic States.”

This motion, if approved, would have capped the potential number of states at 26.  Roger Sherman thought the possibility of future states ever exceeding this number was so remote that the Convention need not even consider it.  The delegates voted down Mr. Gerry’s motion, by a close vote of 4-5-1, thus refusing to limit the future expansion on the Union.

On July 16, the Convention began the proceedings by voting on the whole report as amended, including equality of votes in the second branch of the legislature.  The vote was 5-4-1 in favor of what would become known as the Connecticut (or Great) Compromise, with Pennsylvania, Virginia, South Carolina, and Georgia voting against.  This compromise resolved several issues that were long discussed by the Convention including, mandating that a census would be taken within six years of the first meeting of the legislature and every ten years after that, that all bills for appropriating money would originate in the first branch, and finalizing the representation systems in each branch of the legislature.

The next morning, before the proceedings began, the large-state delegates met to discuss whether they would challenge the Connecticut Compromise.  They ultimately decided,

to yield to the smaller States, and to concur in such an Act however imperfect and exceptionable, as might be agreed on by the body, though decided by a bare majority of States and by a minority of the people of the United States.

The Connecticut Compromise solidified the structure of our legislature.  With these hard fought issues resolved, the Convention moved on to discuss the independent Executive and Judicial branches of government.  Be sure to check out the ConSource blog next week for a discussion of the Convention debates on the structure of the Presidency.

[i] Dana Lansky, Proceeding to A Constitution: A Multi-Party Negotiation Analysis of the Constitutional Convention of 1787, 5 Harv. Negot. L. Rev. 279, 3115-16 (2000)

[ii] Id.

[iii] The members appointed to the committee were Mr. Morris, Mr. Gorham, Mr. Randolph, Mr. Rutledge, and Mr. King.

[iv] The committee was made up of Mr. King, Mr. Sherman, Mr. Yates, Mr. Brearley, Mr. Morris, Mr. Reed, Mr. Carroll, Mr. Madison, Mr. Williamson, Mr. Rutledge, and Mr. Houston.

[v] Delegate representing North Carolina, Williamson served on five committees and was known for his keen debating skills.  He signed the Constitution, and fought for ratification. 

[vi] Delegate representing North Carolina, Davie was in favor of a strong central government and his vote swung the North Carolina delegation to vote in favor of the Connecticut Compromise.  He left the Convention on August 13, 1787, and never signed the Constitution, but he fought for the ratification of the Constitution in North Carolina.