by Ron Carter
“I rise to remind us all of our commissions, or rather, the limitation of our commissions. I agree that the Confederation lacks sufficient power to be an effective government. I do not quarrel with that. I also agree that the jurisdictions of the federal and the state governments must not overlap. But I do question—challenge if you will—the right of this convention to make great inroads on the existing system.”
Washington remained silent, while his thoughts raced. He’s trying to be cautious—too cautious. If the first act of this convention is to abolish the Confederation, he fears the states will never consider whatever comes later—he’s saying go slow—think reform, not revolution. Will the other states follow him? Or will they follow Randolph and Morris?
Some delegates rose to condemn the proposition that the old Articles of Confederation must fall, while others stood to loudly declare there was no other way.
“The idea of a national government as contradistinguished from a federal one, never entered into the mind of any state in sending delegates! And may I be so bold as to suggest that it never entered the mind of one in ten thousand of the citizens of the United States, either!”
“Not so! From the outset, those who have seriously contemplated the subject have been fully convinced that a total change of the system is necessary!”
“What, pray tell, are we considering? Precisely what is the difference between a national government, and a federal government, in the context now before us?”
“It is very simple. No one need be mistaken. A federal government is what we now have. It consists of a Confederation Congress convened under the authority of the thirteen states, which Congress is empowered to create acts that affect the states, and the states only. It has no power to act upon one single citizen of the United States. Further, the Congress is totally dependent on the good faith and will of the states to comply with all acts legally created by it. Should any state refuse to comply with any act of Congress, Congress is absolutely powerless to require the obedience of that state. Congress is powerless to enforce its own acts! Is there any question why we find the United States on the brink of oblivion?
“However, a national government, as contemplated in this committee, is empowered to pass acts that are obligatory upon the states, and in addition, to pass acts that operate directly upon the individual citizens of the states. Thus it is that in the case of a renegade state that refuses to comply, a national government is empowered to require compliance, since it can require the individual citizens to comply with its acts by any means necessary, including the force of arms.
“And there we have it, gentlemen. We speak of ourselves as a nation. But we have not yet accepted the hard truth that if we are indeed a nation, we must have a national government.”
“What? What? How can we have a national government without destroying our state governments? If the national government you describe is to exist, the state governments must yield!”
“Not true! Not true! Cannot the national government be limited to issues that address matters of national interest, and leave the states to address matters that are limited to purely state issues?
“Are you suggesting, sir, that Americans are going to be citizens of two governments? One state, the other national? And do so at the same time?”
“That is exactly what is being suggested.”
“How, sir, can one man answer to two masters at the same moment?”
“Quite easily. Limit the authority of the two masters to the extent that one cannot be in conflict with the other! In the case before us, let the national government limit itself to national affairs. Let the state governments limit themselves to state affairs.”
“You propose that can be done?”
“You propose that it cannot? Should we fail, the shame is upon us!”
James Madison had turned in his chair in front of the dais to peer into the faces of the delegates as the tempo of the argument heated. He turned back to his desk repeatedly, his quill scratching furiously to keep pace with the essence of the arguments, and those who rose to speak. Washington sat to one side like a statue, face passive, only his eyes moving as he absorbed the temper and the quality of each man’s contribution. It’s coming—the fundamentals of the plan are surviving—the dissenters are beginning to see—truth and right are stubborn—they’re getting it.
Franklin was sitting bent forward, slowly massaging his gout-ridden leg. From time to time he glanced at the speakers, then back at his leg, from all appearances more interested in getting a little relief from the relentless ache than the fact that this gathering was locked in mortal combat over an issue that could change the world forever. The pendulum’s swinging—many—maybe most—had no notion what they were walking into when they came here—they’re past the shock—starting to find the ground—not quite ready yet—but soon—is Randolph capable—will he know when?
George Mason sat erect in his chair, every nerve, every instinct alive, racing to stay abreast of the swift change of spirit, of attitude in the hall. Sixty-two years of age, the son of Virginia wealth and aristocracy, his wife an heiress of Maryland wealth and aristocracy, he had reluctantly served in the House of Burgesses in 1759, only to flee at first opportunity from what he saw in the hypocrisy and intrigues of politics. He was appointed to the Virginia convention, and Virginia found in him a man gifted and eloquent in his contributions to the Virginia Constitution, and later in the famous Virginia Declaration of Rights the same year, 1776. Indeed, the historic Declaration was very nearly the sole work of George Mason. He, with Thomas Jefferson and James Madison, formed a triumvirate without peer in their native Virginia. Slowly but steadily he had built Gunston Hall, a vast wheat and tobacco plantation of national reputation, on which he kept and maintained three hundred slaves—an irony and enigma on which he had thus far chosen to remain silent.
Mason turned slightly to judge the speakers as the debate raged on. The nabobs are beginning to falter—beginning to sense that the Confederation is gone—beginning to see that the only issue before us is whether we have the vision and the courage to declare it dead right here, right now, or watch it die within the next five years and the United States with it—do they have the eyes to see—and the courage to act? Do they?
Slowly Randolph rose to his feet, eyes turned to Nathaniel Gorham, waiting. The murmuring slowed and stopped, and all other delegates eased back into their chairs, staring, waiting.
Gorham gestured. “Mr. Randolph? Do you rise to speak?”
“I do.”
An unexpected spirit came stealing into the hot, closed hall—as though every man in the room sensed that a time had arrived which had been preparing for hundreds of years. The silence was electric as Governor Randolph continued.
“I do not intend multiplying words for the sake of multiplying words. Rather, I am compelled to speak simply. I have it in my heart that the matter before us should be resolved now. Here. By us. It is for this reason we have come to this chamber.” He paused for a moment and his eyes dropped to his desktop, then lifted again. “I therefore move that the three resolutions I previously made now be brought to a vote. Yea or nay. All else we do here will finally come to rest on what we now do.”
A delegate stood. “May I request, Mr. Chairman, that the text of those resolutions be read once again, that we not be mistaken in our recollections?”
Gorham nodded. “Mr. Secretary?”
William Jackson stood and droned through the resolutions.
“First . . . a union of the states merely federal will not accomplish the objects . . .
“Second . . . no treaties among the whole or part of the states would be sufficient . . .
“Third . . . a national government ought to be established consisting of a supreme legislative, executive, and judiciary.”
Jackson turned his face to Gorham, set his ledger on his desk, and sat down.
Gorham straightened in his chair. “You’ve heard the resolutions again. Now, do we have a second
to Mr. Randolph’s motion for a vote?”
“Second.”
“The motion passes. The vote will be taken by delegation.”
Madison was sitting erect, breath coming short. Washington did not change the expression on his face. There was a light in Franklin’s eyes.
Gorham stared down at Jackson. “Mr. Secretary, take the vote.”
“Massachusetts.”
“Aye.”
“New York.”
“The delegates are divided. New York abstains.”
“Delaware.”
“Aye.”
“Pennsylvania.”
“Aye.”
“Virginia.”
“Aye.”
There was an audible release of breath in the room. Eight states represented, and New York had abstained. Four states of seven had voted in the affirmative. The resolutions were passed! Jackson went on.
“Connecticut.”
“Nay.”
“North Carolina.”
“Aye.”
“South Carolina.”
“Aye.”
Six affirmative, one negative, and one abstention. No one had believed the vote would be so overwhelmingly one-sided.
Open talk filled the hall, and Gorham let it run for several moments. For one second Madison closed his eyes as relief flooded through his being. They had crossed the mountain! They had shown the courage—reckless as it might be—to ignore the limited commissions each had from his home state to amend the Articles and had instead abandoned them altogether. The old, fatally flawed government was dead. They had now set a course to create a new government, the shape and character of which was known only to the Almighty.
Slowly Madison rose above his euphoria and turned his thoughts to the realities his plan had brought on, and for a split second a shudder seized him. Big states against small states—how will they do—slavery—can they rise above it—how will they structure a new national government—will they follow the plan?
He did not know.
Gorham’s voice settled the hall. “Gentlemen, we have accomplished the business of the day.”
Men glanced at the clock on the wall, startled that they were deep into the afternoon.
Gorham continued. “Are there any other matters that ought to be placed before this committee at this time?”
No one spoke.
“Then this committee is adjourned for the day. The convention shall continue under the authority of its president, George Washington.”
Gorham left the dais, and Washington stepped to the chair behind the desk.
“Is there further business to be brought before this convention?”
There was none.
“I remind each of you of the oath of secrecy we have all taken. This convention is adjourned until ten o’clock tomorrow morning.”
Notes
The proceedings of the Convention for May 30, 1787, were as they have been set forth in this chapter, including the nicety of the delegates conducting their business as a committee of the whole with Gorham acting as chair.
Following debate, matters were reduced to a vote on the three resolutions, which were approved six states to one, with one abstention, as described, thus abolishing the Articles of Confederation without anyone knowing what they were going to do to replace them. Rossiter, 1787: The Grand Convention, pp. 172–73; Warren, The Making of the Constitution, pp. 146–56; Berkin, A Brilliant Solution, pp. 68–71; Bernstein, Are We to Be a Nation? p. 160.
Gouverneur Morris, Pierce Butler, Charles Cotesworth Pinckney, and Roger Sherman are all accurately described. Rossiter, 1787: The Grand Convention, pp. 90–92, 107–8, 131–32, 133.
Philadelphia
May 31, 1787
CHAPTER XII
* * *
Joseph Fry swung the big door closed, twisted the key, and quickly passed down both sides of the hall, closing all the windows and drawing the drapes before he returned to the door to stand facing the dais. The stifling buildup of heat began immediately. George Washington took his place behind the desk, opened the session, dissolved the convention into a committee of the whole, and delivered the desk to Nathaniel Gorham. Gorham spent scant time on formalities before he reached the heart of the day’s agenda.
“Resolved, that the national legislature ought to consist of two branches.”
Madison laid down his quill for a moment and turned to watch and listen. This could be very quick or very lengthy—one of the branches is the senate, and the qualifications for senators in the state legislatures is that they must be property owners—the elite—and worse yet, in some states those selected by the legislature to elect the senators are the greatest of the property owners—the elite electing the elite to represent the elite—to the ignoring of the common folk. The Confederation Congress is a single house legislature—Pennsylvania also—but eleven of the thirteen states already have bicameral legislatures—two houses—they’ll vote aye on this resolution—what will Pennsylvania do?
Pennsylvania did nothing.
It was the cautious Roger Sherman of Connecticut who stood to speak against the resolution. “I see no necessity for a legislature consisting of two branches. The complaints so often voiced against the Confederation Congress have not been of the lack of wisdom of its acts, but of the insufficiency of its powers.”
George Mason of Virginia rose. “I disagree. While the minds of the people of America are unsettled as to some points, in two points I am sure they are settled: first in attachment to the republican form of government, and second, in an attachment to more than one branch in the legislature. Only thus do we have one chamber acting as a check on the other.”
Mason sat down and Madison waited, but no others stood to speak. Gorham shrugged, called for the vote, and the resolution passed with but one “nay”—Pennsylvania. Madison glanced at Benjamin Franklin, then turned back to his quill and ledger, smiling to himself. The Pennsylvania “nay” was for Franklin—they all know he’s partial to a unicameral legislature.
Gorham picked up the next paper from his desk. “We shall take up our next order of business. Resolved, that the members of the first branch of the National Legislature ought to be elected by the people of the several states.”
A hush settled as each delegate struggled to come to a focus. Within the past twenty-four hours the convention had buried the only government the United States had ever known, and started construction of a new one by establishing a bicameral legislature. Most felt they were riding a cyclone, streaking into blank, uncharted space, wildly groping for familiar landmarks, and finding none.
The people elect the members of the lower house? Common people? Uneducated? Ignorant in the business of government and business affairs? People who could be swayed by eloquent scoundrels, or cowed by despots? Are not the property owners in the state legislatures—who have education and the wisdom of experience in political and business affairs—better qualified to select the new national congress?
Or, is the nature of a national government such that it ought to be established by the direct vote of the people at large, not state legislatures? And if by the direct vote of the common people, what is to be done about the chicanery and deception of the power mongers, for nothing is more certain than that they will come, as they have since the dawn of time, and they will corrupt the government to their own gain, on the backs of the common people.
The issue was framed: is the lower house of the national congress to be elected by the people, or by the state legislatures? While it sounded simple and mundane when spoken, there were those in the hall who recognized that they were now facing the second momentous vote of the convention. In recorded history, no government of consequence had ever gambled its existence on the will of the common people. Would this delegation dare?
Mason of Virginia rose. “The lower house is to be the grand depository of the democratic principles of government. It ought to know and sympathize with every part of the whole republic. We ought to attend to the rig
hts of every class of people. I have often wondered at the indifference of the superior classes of society to this dictate of humanity and policy; considering that, however affluent their circumstances or elevated their situations might be, the course of a few years not only might but certainly will distribute their posterity through the lowest classes of society. Every selfish motive, therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of citizens.”
He had not yet sat down when Elbridge Gerry of Massachusetts was on his feet, slight, frail, sharp-faced, bony finger pointing.
“To place the government at the whim of the common man would lead only to the demise of the entire structure. The evils we experience flow from the excess of democracy, and while I am firm in my commitment to the republican form of government, I have been taught by experience the danger of the leveling spirit. I do not suppose that the common man is by nature evil, or destructive—far from it. But I do propose that the affairs of government—complex and intertwined as they are—are far beyond the experience and grasp of the common man. The people simply are not prepared, nor qualified, to make the judgments upon which governments survive. I do not distrust the heart of the common man, but I do distrust his judgment in the matters of government which are so clearly beyond his abilities. Far better that all powers of the national government we propose be derived from the state legislatures.” Gerry pursed his mouth for a moment, then sat down.
Madison was motionless, breathing lightly, waiting to see how the remainder of the delegates would divide on the question. They had come to the second decisive fork in the road. Would they follow Mason or Gerry?
The cautious, reluctant Roger Sherman stood. “It is clear that the people immediately should have as little to do as may be about the government. They want information constantly and are indiscriminate in the sources from which they get it. They are ever subject to the likelihood of being misled on the most crucial of issues, and in time, likely sooner than later, there is no doubt they will be, to their own wounding.”