18. The Preliminary Draft
The next phase of the convention now began. The basic attributes of the Constitution had been lain down. Now the convention selected a Committee of Detail, a five-man committee to actually draft a constitution based on the principles agreed upon during the convention sessions. Of the five now uniquely powerful men, only one—Oliver Ellsworth—was somewhat critical of nationalism, while the four—John Rutledge, Edmund Randolph, Nathaniel Gorham, and James Wilson—were dedicated nationalists, but only James Wilson was a true fanatic. The convention adjourned from July 26 to August 6 to allow the committee to prepare a draft constitution. The draft was prepared by Edmund Randolph, revised by James Wilson, and then submitted to the convention on August 6.
The draft committee, however, did not confine itself to the resolutions passed by the convention. Instead it injected parts of the various plans put before the convention, from the various state constitutions and the Articles of Confederation. In the process the committee cordially watered down much of the overt nationalism of the convention’s resolutions. Particularly important was transforming the general all-inclusive grant of power to Congress into specifically enumerated powers. Of course, such an enumeration of power in essence removed the mantle of ultimate sovereignty from the Congress. Among the powers specifically granted to Congress: to lay and allocate “Taxes, Duties, Imposts and Excises,” to regulate commerce with foreign nations and among the states, to coin money and regulate the value of foreign coins, to establish post offices, to borrow money and emit paper money (“Bills of Credit”), to make wars, raise armies and navies, to call up the militia “in order to execute the Laws of the Union, (to) enforce treaties, (to) suppress Insurrections, and repel invasions,” and very fatefully “make all Laws that shall be necessary and proper” for executing the government’s power.
Another new element in the draft largely absent from previous debates was the placing of specific restrictions on the powers of Congress. Thus, Congress was prohibited from levying any tax on exports or imposts on importation of slaves (at the behest of the southern members), or any other direct taxes not proportional to the free population plus three-fifths of slaves. It could also only pass a navigation act with consent of two-thirds of each house of Congress (again a southern demand). Furthermore, the central government was restrained from intervening in a state to protect it against domestic violence or to subdue rebellion unless requested to do so by the state legislature. The jurisdiction of the Supreme Court was also spelled out and made more specific, thus delineating its power.
Instead of the states being subjected to the vague absolute rule of the central government, the draft document imposed specific restrictions on state power. The prohibitions on state actions were designed to assume to the central government a monopoly of certain critical functions: coinage of money, making treaties, emitting paper money, legal tender laws, imposing tariffs, building a standing army and navy in peacetime, and making war.
The draft constitution, consisting of a preamble and twenty-three articles, opened with a clear and straightforward preamble: “We the people of the States of … do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” Apart from the abovementioned resolutions and changes, there were a few basic alterations. New provisions required the citizens of each state to receive all the privileges and immunities of other states, and each state was to give full faith to the acts and records of the others. New states were to be admitted on the same terms as the original states but would have to gain the consent of two-thirds of each house of Congress.
From August 7 through September 10, the convention debated the draft Constitution in detail. The first fight came over the sensible provision that the qualifications in each state for voting for the House of Representatives should be the same as its qualifications for voting for the lower house of the state legislatures. In short, the eligibility of suffrage would be up to each state. Unsurprisingly, Gouverneur Morris was not satisfied, and he moved to restrict the right of suffrage to landowners. In addition to excess democracy, Morris wanted to reduce the states’ power over Congress. To this charge of aristocracy, Morris countered with the classic method of the right-wing paradox: the current plan is really aristocratic because the people in a democratic House would sell their votes to the rich. John Dickinson backed Morris’ plan as a “necessary defence agst. the dangerous influence of those multitudes without property & without principle.” In his speech James Madison, of course, cleverly combined both of these arguments. Ellsworth and Mason attacked these points, as did even so rabid a nationalist as Wilson. Ellsworth cogently asked, in effect, why landowners? “Ought not every man who pays a tax to vote for the representative who is to levy & dispose of his money? Shall the wealthy merchants and manufacturers, who will bear a full share of the public burdens be not allowed a voice in the imposition of them?” The Morris proposal for restricted suffrage lost by 1-7-1. Delaware was the only state that approved while Maryland was divided.
The next battle was again a reactionary move on the part of Gouverneur Morris. The draft had requested that a senator be a U.S. citizen for at least four years before their election. Morris urged raising the requirement to fourteen. Madison and Franklin, to their credit, turned liberal on this subject and pleaded eloquently on the importance of foreigners who loved liberty in waging the American Revolution. Randolph was also critical of the proposal, as was Ellsworth, and poor Wilson, a man born in Scotland, was particularly against it. He eloquently denounced the “degrading discrimination, now proposed.” He was strongly backed by the foreign-born Hamilton, who had returned to the convention at just the right time. But rabid reaction on this point held sway, Colonel Mason longed to restrict the Senate to the nation-born, and Pierce Butler and Charles Pinckney of South Carolina hinted of the “peculiar danger” of “foreign attachments.” But the most passionate was Gouverneur Morris himself. Calling of all things from “reason” to “moderation,” while assuming the darkest prejudices, Morris lashed out bitterly at the rationalist libertarian philosophers prominent among the intellectuals of the age: “As to those philosophical gentlemen, those Citizens of the World, as they called themselves, He owned he did not wish to see any of them in our public Councils. He would not trust them. The men who can shake off their attachments to their own Country can never love any other. These attachments are the wholesome prejudices which uphold all Governments.” Gouverneur Morris had indeed touched the chords of bigotry in the members of the convention; the citizen eligibility requirement was raised to nine years for a senator and from three to seven years for a representative.
While the draft Constitution had not imposed suffrage requirements on the states, it did authorize Congress to establish property qualifications for its members. While Madison and others wanted the Constitution to fix property qualifications directly, Benjamin Franklin, opportunist, was by far the most liberal, and shrewdly declared that “if honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire for more property—Some of the greatest rogues he was ever acquainted with, were the richest rogues.” From the Right Gouverneur Morris wanted to allow the legislature to set not only property qualifications, but all qualifications for its members. However, on August 10 the entire clause was struck out by a vote of 7-3, with only New Hampshire, Massachusetts, and Georgia assenting to the congressional power to set its property qualifications. The lack of suffrage uniformity among the states and strong political opposition were enough to strike out this highly conservative clause of the draft Constitution.
Another liberalizing change was to modify the draft requirement of an oath upon all state and national offices to support the Constitution; an “affirmation,” a clause necessary for such sects as the Quakers, was unanimously approved as a possible alternative to an oath. Charles Pinckney also moved to prohibit all religious tests for any federal office. Again, this important victory for religious freedom was overwhelmingly approved, with only North Carolina against and Maryland divided.
On the organization of Congress, the ultra-nationalists tried desperately once more to restore judicial veto power over Congress (led by Madison) and absolute executive veto (led by Morris), but after much travail the two-thirds power to override an executive veto was retained. A long squabble came over the compromise provision to grant to the House the right to originate money bills not amendable by the upper house: an old Anglo-American tradition to preserve the control of money in the hands of the directly elected representatives of the people. However, the clause was changed to allow the Senate to amend money bills, which effectively evaded the point of the whole provision.
The nationalists went along surprisingly and readily with the shift from an unlimited grant to enumerated grants of power to the central government. Probably the reason for this “restrictive” anomaly was the broad list of enumerated powers of Congress and the poverty of specific restrictions on that power. Congress would look restricted when in reality it would have a broad legislative scope over the country. Congress was, first and foremost, granted the power to tax, although direct and poll taxes were required to be proportioned to population (including three-fifths of slaves). There was no opposition to this power, to the commercial power, or to the bulk of the other granted powers. Indeed, the Convention added to Congress’ power the establishment of “Post-Offices” along which it could monopolize the postal service.
Congress’ proposed broad military powers occasioned much debate. The nationalists tried to narrow Congress’ power to make war into a more concentrated, and therefore a more controllable, form: Pinckney to the Senate only, Butler to the president himself. While these were defeated, Madison cunningly moved to alter congressional power: “make war” became “declare war,” which left a broad, dangerous power for the president, who was grandiosely designated in the draft as the “commander in chief” of the U.S. army and navy, and of all the state militias. For now, the president might make war even if only Congress could formally declare it. If Congress had the power to “declare” war, then it was no more than a lapse to vest the power to make peace in Congress too. Instead, the draft Constitution placed this power in the oligarchical Senate alone; while Gerry and Butler urged the placing in Congress, this attempt was defeated unanimously.
The liberals tried valiantly to limit this vast and unlimited scope for national military actions, and Elbridge Gerry and Luther Martin proposed a maximum limit of a few thousand on any national peacetime army. But the proposal was rejected unanimously and scornfully by the convention. However, the power to call up and command the state militias met more heated and sustained opposition. Here rested with the American tradition of anti-militias and of opposition to centralized power. The liberals in that tradition were opposed to any standing army and to any central government control. But the attempt of Ellsworth, Sherman, and Dickinson to restrict central power met sharp defeat.
The nationalists, for their part, tried to bring back the idea of unlimited central government power to intervene in a state’s troubles without request by the state legislature. The nationalists wanted absolute power to intervene. The nationalists were repelled, however, by an opposition led by Gerry and Luther Martin and the “subdue rebellion clause” was eliminated altogether.
Not content with the vast enumeration of powers, the nationalists proposed adding more, and Madison and Pinckney succeeded in inserting grants to Congress that included the power to rule absolutely an enclave of federal government that could be totally apart from the states. They failed to include the power to grant corporate charters or to establish a government university.
One successful attempt was made in the convention to remove a grant of congressional power, and the attempt came from none other than the arch-nationalist Gouverneur Morris. Morris’ distrust of recent state paper money transcended both his own previous advocacy and his dedication to ultra-nationalism. Morris wanted to remove the grant of power to Congress to borrow money and to emit paper money. He received support, especially from John Langdon of New Hampshire and George Read of Delaware. George Mason and John Francis Mercer of Maryland defended the clause, but the power to “emit bills on the credit of the U. States” (i.e. paper money) was successfully struck from the Constitution, and only Maryland and New Jersey voted against the change.11
Considering the importance of the public debt question at the end of the war, not much was said about the public debt at the convention. During the 1780s many states had begun to assume their citizens’ shares of the national debt, but the result was to aggravate further the problem of the war-born state debts, especially in such high debt states as Massachusetts. The heavy burden of state debts gave both the state taxpayers and their public creditors an incentive to favor federal assumption, especially of their debts. In this way, the tax burdens could be foisted on the taxpayers of the other more prudent states. South Carolina, another heavily indebted state, led a drive in the convention to impose the national assumption of state debts. Rutledge, Pinckney, and King of Massachusetts managed to refer the whole issue to a “Grand Committee.”
The Grand Committee quickly proposed that Congress be empowered to assume the debts of the old Confederation Congress, as well as the war debts of the U.S. and of the several states. Gerry and Gouverneur Morris then insisted that Congress be forced to pay the debts, and the convention agreed. But Mason and Butler raised the issue of why security speculators should benefit from such a generous windfall. Finally, all states except Pennsylvania voted for a Randolph proposal which conceded the windfall to the speculators and obliged Congress to assume all debts previously assumed by the U.S. Congress. As for the state debts, Hamilton and Madison argued that it would be more expedient, and raise less political opposition, to postpone decision of this controversial issue and to push the assumption even later as an administrative measure.
One crucial indirect consequence of this decision was a proposal by Roger Sherman that the congressional tax power be intimately and expressly connected with paying the national debt. In the final committee appointed at the end of August, this was vaguely adopted by inserting the congressional taxing power “to pay the debts and provide for the common defence and general welfare of the United States.” In this way, the famous “general welfare” clause slipped through, unheralded, into the Constitution and was later misdirected and blown up to allow Congress to levy any tax whatsoever as long as it might be used to promote the vague “general welfare.”
While the powers of Congress were enumerated, these grants were added by a vague and portent supremacy clause. Originally an anti-nationalist clause to replace the congressional veto power over the states, the draft Constitution greatly strengthened the supremacy clause by putting acts of Congress and U.S. treaties above state constitutions as well as state laws, and specifically over state as well as federal judges. John Rutledge then was unanimously able to add the U.S. Constitution, as interpreted by inferior or superior courts, a third supreme law over state and state courts. Still not satisfied, Pinckney, Wilson, and Madison tried to insert as well a congressional veto power over all state laws by a two-thirds vote of each house. Opposed were Mason, Rutledge, and Sherman. This proposal lost by the closest vote, 5-6 (Yes: New Hampshire, Pennsylvania, Delaware, Maryland, Virginia; No: Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia).
In contrast to the trampling grants of power, albeit specifically enumerated, to Congress, the specific restraints on Congress proposed in the draft were but few. However, this was still a decided improvement over the total power and complete absence of restraint in the Virginia Plan Report. Most of these were prohibitions on certain invasions of individual liberty. For example, the crisis of “treason,” usually loose and totally vague, was restrained in the Constitution. Furthermore, Congress was forbidden to pass bills of attainder or ex post facto laws and to suspend the right of habeas corpus, although this right was weakened by allowing its suspension “when in cases of rebellion or invasion the public safety may require it.” This fateful weakening was put through by Gouverneur Morris. No discriminatory legislation was allowed to benefit one port of a state over another, and ships from one state to another could not be forced to pay duties. The libertarian ex post facto and bills of attainder prohibitions were moved by Elbridge Gerry and James McClurg of Maryland, and there was little disagreement about either. The vote on this prohibition was 7-3-1 (against were Connecticut, New Jersey, Pennsylvania; North Carolina was divided).
It is crucial to note that the enthusiasm at the convention for restraints and prohibitions on the states was far more severe than for Congress. This reveals the basic desire to cripple the states and bring them under the aegis of the central government. For example, the states were to be prevented from making treaties without the consent of Congress, from maintaining any peacetime army or navy, making war, granting titles of nobility (as was the central government also prevented from doing so), levying tariffs, emitting paper money, and issuing legal tender laws. States were also prohibited from passing any bills of attainder or ex post facto laws, and in general jury trials were required in criminal cases. The libertarian fervor which prevented invasions of freedom by the states was scarcely matched by any equivalent enthusiasm for limiting the potential actions of the central government.
Wilson and Sherman moved to make the prohibitions on state issue of paper money and paper legal tender laws absolute even with the consent of Congress. Sherman exulted that this was a “favorable crisis for crushing paper money,” and this prohibition was made absolute by 8-1-1 (only Virginia voted no and Maryland was divided). The protection of individual contracts from the states was moved by Rufus King and supported by Wilson and Madison; Gouverneur Morris objected in the name of majority rule and he and Mason thought this was “going too far.” But the protection finally prevailed.
One of the most important debates of the session was waged over the procedure for admitting new states into the Union. The basic provision in the draft Constitution was that new states must “be admitted on the same terms with the original states.” But this provision scarcely suited the aim of the conservative easterners to keep perpetual domination over the growing West. Gouverneur Morris, leader of this group, moved quickly to eliminate this requirement for equality of treatment. And despite the opposition of Madison and Mason, Morris’ motion was overwhelmingly approved in the seaboard-dominated convention by a vote of 9-2; only Maryland and Virginia objected to this blatant disregard for western equality.
The next debate was over Morris’ proposal to require the consent of any existing state, as well as of Congress, for the admission of any new state out of its present territory. The large states made the general guarantee of their current territory a major sticking point and threatened to leave the convention if their demands were not met. They were led by Morris and Wilson with Luther Martin and Daniel Carroll of Maryland leading the opposition. Here again was a recurrence of the old struggle between the large landed and the small landless states, a recurrence prompted by the revolutionary new-state movements brewing in the West, as well independent Vermont. Martin, backed by John Dickinson, eloquently urged the uniformity of allowing all the people of the frontier lands, of western Virginia, North Carolina, Georgia, and Maine (which belonged to Massachusetts), to continue without the consent of their state governments. Martin, too, warned that the small landless states would walk out if they were required to guarantee the western territories to the large landed states. But only three landless and small states—New Jersey, Delaware, and Maryland—took the point of freedom for the western settler; the easterners had won the right to consider every new admission on completely arbitrary terms and to keep the westerners de novo enthralled if they so desired. There could be no clearer indication that, for the ardent nationalists of Pennsylvania and Virginia, the declaration of state’s rights applied only to situations where the large states could discriminate; lest the large landed states be directly threatened, these nationalists revealed quickly enough that their real desire was for power, and not for an abstract ideology of nationalism divorced from a power struggle for land.
A slight hitch developed over Vermont, for it was clear that New York would hardly consent to the admission of Vermont, which it claimed for itself, into the United States. This was taken care of in an amendment by Morris himself which stated that any new state within the “jurisdiction” rather than within the “limits” of an existing state did not need the consent of that state, and Vermont was evidently not under New York’s effective jurisdiction.
The draft Constitution had vested a great deal of power in the Senate: especially the power to make treaties, appoint judges and ambassadors, establish courts, and settle disputes between states. The nationalists, who wished to establish the single executive’s power above the power of all other branches or subdivisions of government, chose to transfer all this power to the presidency. Led by Morris, Madison, and Gorham, the convention agreed to at least eliminate the Senate’s judiciary functions.
The draft Constitution had agreed that the single executive, the president, would be elected for a single term by the Congress, but again the nationalists put a desire to overturn the previous convention decision to eliminate this dependency of the president in the representative legislature. The joint problem arose in how the legislature would do the electing: should the houses of Congress vote separately or jointly? The large state delegates of course preferred a joint ballot that would deprive the small states and Senate of much influence in the decision, and this view prevailed by a vote of 7-4. Then the nationalists worked for a powerful and independent presidency: their indomitable leader Gouverneur Morris urged again a president chosen by a body of popularly elected electors. The Morris motion was first defeated by 6-5, and this important decision was postponed.
In theory, an executive is supposed to be a mere enforcer of the laws, in effect, an agent of the legislature only. But the nationalists proceeded to alter this concept and exult the executive in a highly important textual change. Whenever the draft had stated that the president “may recommend” measures to the Congress, the convention changed “may” to “shall,” which provided a ready conduit to the president for wielding effective law-making powers, while the legislature was essentially reduced to a ratification agency of laws proposed by the president. In another fateful change, the president was given the power to create a bureaucracy within the executive by filling all offices not otherwise provided for in the Constitution, in addition to those later created by laws. The convention, led by Gouverneur Morris, also rejected a motion by Dickinson and Randolph to allow Congress to give the states the power to fill some federal offices. Thus, the central government was left in an unchecked domination over federal offices. On the other hand, Roger Sherman was able to win the concession that the president would only be commander in chief of the state militias when they were directly in the service of the U.S. government.12
- 11. In any interpretation in good faith of the Constitution, it should have been crystal clear from this exercise that Congress had and has no constitutional power to emit paper money!
- 12. [Editor’s footnote] Farrand, The Records of the Federal Convention, vol. 2, pp. 163–68, 202, 237–38, 244, 261, 439, 454.
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