by Ron Carter
For one moment Washington glanced about the room, aware something had changed. It took but a moment to understand that every delegate in the room had grasped the fact they had crossed the mountain in the vote of yesterday. The deadly collision between the large and small states that had threatened the very existence of the United States had come down to the historic vote, and America had survived. It was behind them. It was now on their shoulders to close ranks and move on. He picked up the next piece of paper, drew a deep breath, and resolutely read.
“It is proposed that the new congress be vested with the power to negative such state laws as are contravening in its opinion the Articles of Union.”
The issue—the power in the national congress to negative and declare void any state law that Congress opined ran afoul of the Articles of Union—had first been argued on May thirty-first, and had been battered again on June sixteenth and June twentieth by the committee of the whole. Today it was before the convention for a final vote, if that were possible.
Once again Gouverneur Morris heaved his bulk from his chair, shook his head, and waved one hand. “Such a power in the national congress is likely to be terrible to the states. Worse, it will likely be a matter of utter disgust to them. They are jealous of their sovereignty and fearful of any institution vested with the power to override their own legislature.”
Roger Sherman stood. “This proposal is unnecessary! The state courts will hold invalid any law contravening the authority of the Union, and since such a state law would not be valid or operative even if they did not hold it invalid, this proposal is superfluous.”
The vote was called and taken. Three states aye, seven states nay. The entire proposal was resoundingly defeated, and James Madison had lost the second of his great dreams for a strong central government. The new national congress would not have the power to override state laws. Madison accepted his personal loss without a word.
Instantly Luther Martin of Maryland was on his feet, and Washington recognized him.
“I move,” he declared, “that the following be approved.” He plucked up a piece of paper and read:
“That the legislative acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their citizens and inhabitants—and that the judiciaries of the several states shall be bound thereby in their decisions, anything in the respective laws of the individual states to the contrary notwithstanding.”
For several seconds the room was gripped by silence as the delegates examined the proposal. Then their heads began to nod. It appeared that it was all there. The supremacy of the United States over the individual states, and the duty placed on the judiciary to enforce this supremacy.
“Call for the vote.”
“Seconded.”
“Mr. Secretary, take the vote.”
It took but one minute to record the unanimous vote—Aye.
Washington glanced at the clock, then read from the next paper.
“It is proposed that the convention approve and adopt the proposal made by the committee of the whole that there should be an executive consisting of a single person, to be chosen by the national legislature.”
A delegate stood. “I propose an amendment. Such executive shall be vested with two powers: one, to carry into execution the national laws; and two, to appoint to offices in cases not otherwise provided for.”
Debate was perfunctory and limited before the vote was called and the proposal approved.
Washington again glanced at the clock, and then for a few moments those blue-gray eyes searched the faces of the delegates. He could not recall a day since the convention convened that rancor and acrimony had been less evident. Debate had been civil, differences of opinion respected, compromise quietly accepted. The convention had accomplished more on this day than any single day before. Something startling and fundamental had changed for the better, and he was reaching to define what it was.
He gathered his papers, and announced, “We stand adjourned until ten o’clock tomorrow morning.”
Ten o’clock the morning of Wednesday, July eighteenth, saw the midsummer heat in Philadelphia at its worst, and the delegates at their desks, already wiping perspiration as Washington initiated the day’s proceedings.
“The first matter to come before this body is the question of the judiciary branch of the proposed government. On June fourth this convention established one supreme tribunal. One supreme court. However, the issue of lesser courts was not resolved. The matter now before us is on the motion of Mr. Madison, seconded by Mr. Wilson, as follows: ‘That the national legislature be empowered to institute inferior tribunals.’ Debate is open.”
In less than one minute the debate plunged into the prickly proposition that this convention must create a new level of national courts beneath the supreme court, which had power over all state laws and all state courts. While it appeared innocuous enough in concept, every man in the steamy room knew that the states had a near mortal terror of anything that would rob them of their sovereignty. Generations of living under a monarch who had absolute power over them—their property, their lives, their freedom—had instilled a loathing in their very bones for any person or any institution that rose above the power of a state to reign supreme within its own boundaries. Voting to establish one supreme court for the new national government had been one thing. Voting now to establish a series of lesser national courts with power over everything held dear by the states was quite another.
Pierce Butler of South Carolina rose. “I cannot see the slightest necessity for such a court system, since the state courts can certainly handle the affairs of their own states!”
Edmund Randolph, Governor of Virginia, took the floor. “The courts of the various states cannot be trusted with the administration of the national laws. With thirteen separate court systems attempting to interpret the national laws, it is clear and certain that in time, conflicting interpretations will result in chaos.”
Luther Martin rose to agree. “The states will create jealousies and oppositions between the various jurisdictions.”
Madison was on his feet. “If we do not establish courts at the national level, which are beneath the supreme court, it is only a matter of time until the appeals from state courts to the supreme court will be overwhelming. We must have intermediate courts at the national level with jurisdiction to receive and hear appeals from the state courts.”
The arguments continued, firm but restrained, until the vote was called for. It was unanimous in favor. There would be a series of national courts, their number to be determined by the legislature.
Washington continued. “The next matter is the method of selecting judges for the courts. The resolution now before us provides that they shall be appointed by the national legislature. Debate is open.”
A frowning James Wilson stood. “Unfortunately, experience has shown that when such appointments are made by a body of men with divergent views and interests, all too often the result is seriously lacking. Such appointments ought to be made by one person.”
Randolph rose to oppose him. “I differ absolutely with my colleague,” he declared. “Ten of the thirteen states have entrusted appointment of their judges to the legislatures, and they are doing well.”
Rutledge stood, shaking his head. “I find it dangerous to vest so great a power in any one person.”
A standoff was taking shape, and to avoid it, one delegate stood. “I move that we reconsider a prior motion of Mr. Madison. Simply stated, it was that the judges for the new national courts be appointed by the Senate, since each state has an equal voice in that branch of Congress.”
Silence held for a moment before the call came, “Seconded.”
“Call for the vote.”
Secretary Jackson recorded the ayes and nays, and the motion passed.
As of July eighteenth, 1787, judges in the new national court system would be appointed by the Senate.
Washington moved on. “The next matter is the jurisdiction of the various national courts.”
Instantly the delegates braced for the debate that was coming. Three plans had already been presented, the first by Randolph of Virginia. His plan vested original jurisdiction in the lower national court system for piracies and felonies on the high seas, captures from an enemy, cases involving foreigners, national revenue, impeachment of national officers, and anything affecting the national peace and harmony. The second plan by Pinckney of South Carolina included treaties, the law of nations, trade and revenue, or any case wherein the United States was a party, as well as maritime matters. The third plan, from Paterson of New Jersey provided for only one national Supreme Court with appellate jurisdiction from all state supreme courts, basically on the same issues and matters presented by Randolph. To these, Madison added the clause that the jurisdiction of the national judiciary shall extend to cases involving laws passed by the national congress and any questions involving national peace and harmony.
Debate quickly bogged down in gritty arguments that reached into the most remote detail and it continued until one delegate stood, and the room became silent.
“Move for the vote on the plan of Mr. Randolph.”
A relieved voice called, “Seconded.”
Jackson recorded the vote, and the Randolph plan, as amended by Madison, was passed. There would be one supreme court, and a system of lesser courts at the national level, with jurisdiction as provided by Mr. Randolph and Mr. Madison.
Washington looked at the clock, then at the faces of the delegates, and announced, “We are adjourned until tomorrow morning.”
There was no letup on July nineteenth, either in the sweltering Philadelphia heat, or the gritty detail of the convention agenda. Creating a new government for the United States was a grand idea when one spoke only in the abstractions of the glorious and idealistic principles on which it must be based. Who would take issue with the broad-stroke ideals of freedom, justice, harmony, peace, prosperity, happiness, and the checks and balances in a government that would forever protect the citizens from kings and monarchs and despotic institutions that would rob them of such precious things? The challenge did not lie in reciting the principles. The challenge lay in finding enough genius and endurance in this body of men to put together a government founded on the broad principles, but with a fabric of detail that would forever support them. And there was no blueprint, no model, no government since the dawn of time, to look to for guidance. Clearly, the devil was in the detail, and they were learning that the detail in creating a new government came in a gargantuan avalanche.
They collectively took a deep breath, set their teeth, wiped at the perspiration, and plowed on.
If the executive branch of the new government was to be but a single man, what qualifications should he have? What age? Who should select him?—the Senate?—the people by popular election? What should be his term of office? Should he be allowed to stand for reelection? And if so, how many times? Should he be subject to removal for good cause?—impeachment? Should he have the power to veto laws passed by the state legislatures that he might deem harmful to the national government? What checks and balances must be in place to keep a president from becoming a despot, as he surely would if unrestrained? The arguments multiplied and piled, one on top of another, first one, then another in opposition, then a third that was a blend of the first two. Gouverneur Morris could see no other course than electing the president by popular vote, or at least by the vote of the property owners of the various states, which appeared unworkable to some delegates and near suicidal to others. John Dickinson argued loudly for each state nominating its best citizen into a pool and letting the national congress elect the president from the thirteen-man pool; that proposal died instantly. Oliver Ellsworth of Connecticut campaigned for electing the president by the national legislature, with electors chosen by the state legislatures to take control whenever an executive sought reelection. James Wilson voiced his very low opinion of having legislatures elect the president by proposing that a group of national legislators be selected by drawing lots and letting them elect the president, following which Wilson quickly withdrew the notion, convinced he had delivered his message of contempt for the idea of having the legislatures elect the president.
The debates raged on with no end in sight. One sweaty day blended into the next, with no workable solution in sight. Few had expected the seemingly innocuous question of how to select a president to be such a thorny, stubborn thing. July twenty-third, the long-missing delegation from New Hampshire appeared for the first time. Nicholas Gilman and John Langdon walked into the East Room, took their places, and sat bewildered as others tried to explain all that had happened, and the current state of jumbled affairs. On that same day, James Paterson of New Jersey departed for home, not to return until September seventeenth, the day the newly approved constitution was signed.
In the midst of it, the delegates arose one morning to a newspaper article in the Philadelphia Packet, which at first struck fear into their hearts and then brought on great guffaws. The brief article said:
“So great is the unanimity, we hear, that prevails in the Convention, upon all great federal subjects, that it has been proposed to call the room in which they assemble, Unanimity Hall.”
The fear that instantly seized their hearts was that some delegate had leaked information to a newspaper. All too well did they know that if the newspapers, and consequently the people in the thirteen states, learned of the hot, desperate struggles that had already transpired, and the head-on collision toward which the convention was speeding—the issue of slavery—they were doomed. It was only after a second or third reading that they realized nothing had been leaked to the newspapers. The article was but an uninformed foray—ill-advised—to make news where there was none.
Nevertheless, within days the story had appeared in every major newspaper in the country, while the delegates chuckled. Unanimity Hall? If there was ever a geographical location that did not deserve such a lofty characterization, it was the East Room in the Pennsylvania Statehouse during the Grand Convention. The delegates had their laugh, put the newspaper article behind them, and took a vote forbidding members of the convention to take copies of the resolutions already agreed to out of the East Room. Then they wiped at the sweat on their brows and struggled on.
A frustrated James Wilson examined all the conflicting proposals and shook his head. “I hope that a better method of election will yet be adopted.”
But it was dour Elbridge Gerry who voiced the opinion of most delegates. “We seem,” he declared with his usual acrid expression, “to be entirely at a loss on this head.”
On July twenty-sixth, swamped with conflicting proposals for selecting the executive for the new government, weary to the point of exhaustion, the convention took two bold steps. First, they appointed a committee that was quickly styled the Committee of Detail, and dumped the snarled mess of conflicting proposals regarding the new executive onto them. The five-man committee included Rutledge of South Carolina, chairman; Randolph from Virginia; Ellsworth from Connecticut; Wilson from Pennsylvania; and Gorham from Massachusetts. Their specific charge was to prepare and report back to the convention, a rough draft of a constitution that conformed to the resolutions already passed. The Committee of Detail disappeared into their own secret huddle where they methodically laid out all conflicting proposals, organized them, and then selected Randolph to create the first rough draft of a constitution. Little of what they did in the privacy of their meetings was ever revealed; however, one scrap of paper was later discovered, which caught and crystallized the spirit that became the guiding star of the entire convention. It stated:
“In the draught of a fundamental constitution, two things deserve attention: 1. To insert essential principles only, lest the operations of government should be closed
by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events; and 2. To use simple and precise language, and general propositions, according to the example of the several constitutions of the several states; for the construction of a constitution necessarily differs from that of law.”
And, second, on the steamy morning of July twenty-sixth, a tired convention gratefully adjourned until August sixth, to give the newly authorized committee time to do its work. The delegates scattered. Some had their bags packed and were inside coaches leaving Philadelphia before the sun set, to return home to waiting wives and families, and business affairs too long neglected. Others, with homes too distant for travel in the ten-day reprieve, remained in the city to enjoy their leisure, lounging in the taverns and the open air restaurants that lined the Delaware River and visiting the theaters in the relative cool of the evening.
George Washington and Robert Morris saddled horses and rode northwest twenty-six miles to the place on the Schuylkill River called Valley Forge, where the battered Continental Army had spent most of the winter of 1777–1778. Somber, thoughtful, Washington walked slowly through the neglected remains of the camp, with heart-wrenching memories alive in his mind at every step. Men dressed in tattered summer clothing, sick, starving, standing picket duty at midnight barefooted in the snow, the temperature nine degrees below zero, perhaps with only a felt hat beneath their feet to keep them from freezing to the ground. He came to the great plot of ground, overgrown with ten years of grass and Pennsylvania foliage, where three thousand of his men were buried in huge, unmarked graves—dead from freezing and starvation, and he stopped, and for a long time stood with his hat in his hand, head bowed. He was seeing his men as they were then, hollow-cheeked, sunken eyes, feet and legs blue and black, but refusing to leave—willing to die before they would abandon the dream. He settled his tricorn back onto his head and walked away with a burning in his chest.