This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the events that led to the constitution of the First Constitutional Convention, the origin and functioning of the Convention and how these events led to the formation of the United States Constitution.
It has been published by Rachit Garg.
Today, when someone mentions the United States of America, one envisions a country that has a structurally sound government, a strong economy and an evenly strong military. As of today, the Country has 50 states. Coming to the United States Constitution, it is the instrument that unites the whole country as one. It consists of a Preamble and 7 Articles in total. It includes provisions governing the functioning of the legislature, i.e., the House of Representatives and the Senate, the executive, i.e., the President and the judiciary, i.e., the Supreme Court and other inferior courts in the country. Apart from a federal Constitution, every state in the country has adopted a Constitution of its own.
With all the glory that this country had achieved, the question that we need to ask ourselves is what sets the country apart. Whether the nation was always as supreme as it is today or was there a time when this country faced threats, both internal and external? What was the situation which forced several states that were British colonies in the early 1700s, to come together and form a united nation and how is all this connected to the formation of the Constitution? Read along to find answers to all these questions and to understand the process behind the enactment of the evergreen United States Constitution.
Before the enactment of the Federal Constitution as we know it today, there were several obstacles that lay in the way. The first among these obstacles was the fact that the American states were under English rule and were part of British colonies. Under the British regime, the states existed independently and were governed by the British system of government. They had to follow the laws passed by the English parliament and the orders of the Crown. After suffering years of atrocities, the states fought back for their freedom. The United States Declaration of Independence was a document that raised the issues faced by American citizens against British colonial policies. This document raised allegations against the Crown for violating the English Constitution, enacting unlawful legislation, and oppressing the minorities in the country. It was through this Declaration that the citizens of America demanded their freedom from the British empire. Now let us look into what followed the American independence.
The Articles of Confederation
The American society led by the National Congress, which had declared its independence from the British regime on 4th July 1776. However, the war to achieve true independence was far from over. Although the states had been freed from the British regime, they were yet to come under a common head, under a joint federal government that could represent and raise the voice of the entire nation. In furtherance of the same, Richard Henry Lee proposed the constitution of a Plan that would unite all the freed colonies to form a confederation. He proposed that this Plan should be ratified by all the states and justified this Plan in the name of military necessity as even though all the states were independent, their individual might was not sufficient to retaliate against the British army. However, the states believed that such a Plan would in turn again push them towards colonisation and this time, it would be its own government that colonised them. Thus, even though the states recognised the impending threat, they refused to the formation of a new federal government. However, they accepted that a confederation need to be formed so that the states could unite their military powers.
In those days, there were only 13 recognised states in the country and a Committee was formed consisting of one member from each state with the intent of drafting a Plan for the confederation. It was only after a year in 1777, that this Plan was adopted by the National Congress and was referred to as the Articles of Confederation. However, even though the Plan was adopted by the National Congress in 1777, the ratification of the articles by the states was a long process and it took almost 4 years for this process to complete. During this time, an interim agreement was entered into by the states that contained similar provisions as that of the confederation.
However, these Articles did not form the basis for a strong institutional government. Under these Articles, the notion of equal representation for all states in the national Congress was recognised and every state was empowered to cast one vote irrespective of the state population or wealth. Although a President was appointed to head the executive branch, there were negligible powers assigned to him. All powers ranging from enacting new laws, and financial policies, creating executive departments and appointing members as the heads of these departments, taking military decisions, etc., were vested with the National Congress itself. However, it is pertinent to note that the law-making process was extremely difficult as for any law to be enacted, at least 9 of the 13 states had to vote in favour of it. Amending the Articles was also not an easy task because such acts required the consent of all the states.
One of the major issues that were present under the Articles was the absence of executive powers with the National Congress due to which it was unable to enforce laws passed by it in the states. Also, the National Congress had no power to collect or levy taxes from the states for any purpose. Thus, it had no direct source of income. Although the National Congress was authorised to make decisions regarding war and to raise an army, it had no power to raise an army on its own. It had to rely on the soldiers being sent by the states and the states were free to send any number of soldiers as they wished. Funds for the army were also to be raised by the states but the disproportionate contributions made by the states only raised further issues. States did not feel the need to enforce national laws. If any state denied the implementation or enforcement of the national laws within their state, other states would use it as an excuse to follow suit. Thus, all in all, the Confederation of Articles could not be considered a final solution for the creation of a fundamentally strong system of government and for the unification of all the states.
Even with all the flaws under the Articles of Confederation, the American states showcased a united front in the Revolutionary war and won the war in 1781. The American army was led by General George Washington, the man that went on to be the President of the Philadephia Constitutional Convention and the First President of the United States. Having won over the external evils, the battle with the internal demons was only beginning. The main objective behind accepting the Articles of Confederation was to form a united military and with the war coming to an end, the states no longer saw the need to keep complying with the provisions of the Articles of Confederation. This led to the immediate downfall of the National Congress.
What followed was internal disputes between the states regarding ownership of property ad state territories. The states of Connecticut and Pennsylvania started fighting over a disputed land towards the west. The coastal states started imposing taxes on the import of goods irrespective of the fact whether the goods were being imported to their states or not. Apart from these internal disputes, what concerned the newly formed nation was the severe economic debt it was in. By the end of 1789, the country was in debt of over $12 million to foreign creditors. These creditors threatened to continue trade with the country they failed to repay the debt. Even with which a threat looming over the nation, the states denied contributing towards the national treasury for the repayment of debt and the national Congress had no power to compel the states to do the same. In order to keep the economy stable, the National Congress sought loans from the banks in the Netherlands. Another issue that impacted its economy was the lack of gold and silver, which were acceptable forms of currencies for international trade. They had depleted their national reserves by importing luxury items from Britain soon after the war. Due to this, they no longer had the means to pay off debts. Apart from this, the soldiers who fought for the country in the war started demanding their wages and yet again the national Congress had no answer. This resulted in rebellions in the state and to suppress these rebellions, the states acceded to the demands of the soldiers and printed paper currency to pay them.
Even after the end of the revolutionary war, the British continued to siege the borders of the country. The falling economy coupled with the lack of resources made it more difficult for the states to defend their borders allowing the British to enter into state territories and illegally occupy property in violation of the Paris Treaty that was signed by the Britsh after being defeated in the Revolutionary war. Spain followed suit and utilised its navy to capture and occupy areas in the Mississippi River and it also started to raid coastal cities. America’s attempts to indulge in international trade were also being foiled by the British as they denied their ships to dock in the British colonies of Canada and the West Indies, the two most important trading points at that time.
With all these issues looming over the country, the need for a change in the national government structure was felt throughout. People had started to identify that the Confederation of Articles need to be amended or there should be an entirely new system in place. These thoughts led to the formation of the first Constitutional Convention in the year 1787. Now let us look into the origin and proceedings of this Convention.
The United States Constitutional Convention, 1787
After gaining independence from the British empire, the question that arose was how to manage and untie the different states in the American subcontinent. Soon after independence, the first issue that gathered attention nationwide was the issue of inter-state trade and commerce. Several states had refused to engage in trade with other fellow states. This led to the fall of the American economy even before it could find its place in the world. To find a solution for the same, a statesman from the Virginia Assembly, Mr James Madison, put forth the view that all the states should come together to discuss and resolve the issues of inter-state trade and commerce so that the American economy can grow at a steady pace. As a result of his efforts, the first trade conference of independent America was held at Annapolis, Maryland in 1786. However, the conference failed to yield any results due to the fact that several states did not send their representatives to attend the trade conference. Only the states of Virginia, New Jersey and Delaware participated in the conference through their representatives and because of the non-participation of the other states, the conference concluded without resolving the issues posed by the restrictions on inter-state trade. However, this conference cannot be deemed as a total failure because this is where the first step toward drafting the US Constitution was taken. The representatives of Virginia and New Jersey, i.e., James Madison and Alexander Hamilton called on the states to come forward and send their representatives to a conference that was to be held in Philadelphia in the month of May of the following year with the object of discussing and enacting provisions that will help form a Constitution that will have a nationwide application and will result in unifying the states under the common head of the United States of America.
The National Congress yet again failed to pay any heed to the request made by the representatives in the Annapolis Trade Convention. However, this changed with the threat to peace and the prosperity of the states that followed soon after. In the latter half of the year 1786, multiple rebellions started to take place in different states. The root cause of these rebellions remained the same, i.e., the inability of farmers to pay their debts to creditors due to the burden of excessive taxes. These rebellions targeted the judicial system by not allowing courts to function and also targeted the police authorities. These attacks on the judiciary were done with the common object of stopping the judicial authorities from passing sentences against the farmers or passing any orders for the seizure of the properties of the farmers to pay off the debts whereas the attack on the police authorities was done with the intent of stopping them from executing any orders that were issued against the farmers or their properties. Although most of these rebellions were being controlled in different states, there was one rebellion that stood out, i.e., the infamous Shays’ Rebellion that was led by revolutionary war veteran Daniel Shays’ that took place in the state of Massachusetts. The authorities and Congress had no answer to this rebellion and son there was a threat of a civil war breaking in the country.
People across the country started questioning the inability of the National Congress to maintain peace and order within the states. To recover from this situation, multiple states passed laws allowing farmers to pay their debts by using American currency that had negligible value in the world economy. However, this move was not appreciated by the creditors who then started to raise their voices. With tensions rising throughout the country, the Bational Congress finally decided to adhere to the request made by the representatives in the Annapolis Trade Convention and passed a resolution in this regard. In the resolution, the National Congress called for a conference with the object of amending the Articles of the Confederation, discussing and redressing the issues plaguing the country, and drafting a new Constitution for the Federal state of America that will help in its unification. They called upon representatives from all the state legislatures to be present for the Conference that was scheduled on May 14 1787, in Philadelphia.
Following this resolution, the states felt compelled to send their representatives to the Conference either with the fear of future rebellions arising within their states or with the fear that their interests and opinions would not be considered if they failed to participate. Whatever the reason, all states except the state of Rhode Island agreed to send their representatives to the Conference to be held in Philadephia, which is infamously known as the United States Constitutional Convention.
The representatives at the Philadephia Convention
Even though the states had accepted the call for the Conference, the question that loomed over now was who should be their representatives. Several people who were considered the most prominent individuals in the country at that time chose to refrain from attending the conference. This included the likes of Patrick Henry, George Clinton, Samuel Adams and Richard Henry Lee. However, their non-participation was lauded by political scientist Clinton Rossiter on the basis that these individuals would have represented an America that was free from social evils because of their status-quo in society which would have resulted in the formation of a Constitution that would have failed to meet its primary objective, i.e., unification of the states.
In total, there were 55 representatives who participated in the Philadelphia Convention. What benefitted the Convention was that these individuals, although hailing from different states, had come together with a common belief, i.e., the need for a strong national government at the core of the federal structure of the United States. These representatives believed in the formation of a government of the people. Some of them were either current or former members of Congress, had served time in the revolutionary war, and a selected few had even signed the Declaration of Independence. Another significant detail about the representatives was that they belonged to a diverse age group with the youngest representative hailing from New Jersey who was aged 26 years while the oldest representative, Benjamin Franklin aged 81 years hailed from the state of Pennsylvania.
Rules and procedures of the Convention
Even though the Convention was scheduled to commence on May 14th, the quorum to commence its proceedings was only reached on 25th May when representatives from 7 states arrived and confirmed their participation in the proceedings. The representatives from other states joined after the commencement of proceedings at different intervals.
When the quorum was reached, the first task before the representatives were to appoint a President who would act as the presiding officer of the Convention. For this role, George Washington was unanimously elected. After his appointment, Major William Jackson of Pennysylvania was appointed as the secretary of the Convention. The secretary was given the role of maintaining records of the motions raised by the representatives and the votes cast on every motion. Apart from William Jackson, the representative from Virginia, James Madison also maintained his own personal records of the motions, votes, and debates of the Convention. Next in line was the decision regarding the voting power of each state. All the representatives except the secretary himself agreed that every state should have an equal voting right and has the authority to cast one vote. The reason behind opting for equal voting rights was to allow all states, irrespective of their population, to represent their interests and to let them have an equal say in the policies that would govern them in the future. James Madison was also of the view that if the representatives called for an unequal voting share based on the size of the population, smaller states would withdraw from the proceedings and the Convention would fail even before it started. However, James Wilson was of the view that voting power should be determined proportionately on the basis of the population of every state.
Another important rule of procedure adopted by the representatives was the rule of confidentiality. As per this rule, all representatives were prohibited from disclosing the discussions and debates that were going on in the Convention to any person who was not a party to the Convention. The intent behind adopting this rule was to disallow any person who was not a party to the Convention from influencing the decision-making within the Convention. Further, this also prohibited any misinterpretations of the debates of the Convention by the society at large. This allowed the representatives to speak openly in the Convention without the fear of facing any objection or retribution from the public.
The Convention did more than just provide equal voting rights to states to promote equality of all states and representatives within the Convention. This can be inferred from the fact that every representative had the right to raise an issue for discussion even if the parties had already voted on the issue. This opened the floor for a re-discussion of the issues raised by smaller states even if the parties had voted against its implementation. The intent behind the adoption of this rule was to allow smaller states to have their voice in the matters of the Convention and also to keep them involved during the entire proceedings even if the issues raised by them or the recommendations put forth by them are not accepted by the Convention.
Now that we have understood the composition and rules of the Convention, let us look into the functioning of the Convention.
The Virginia Plan
4 days after the commencement of the Convention, the first step toward drafting a new Constitution was taken by the state of Virginia. The representatives of Virginia, led by James Madison and the Governor of Virginia Mr Randolph introduced a Plan wherein they proposed a tri-level federal government that had superintendence over all the states. This proposition was against the fundamental nature of the Articles of Confederation and since it was introduced by the state of Virginia, it is infamously known as the Virginia Plan. James Madison is also credited for drafting this Plan. Now let us understand the tri-level government that was proposed under this Plan.
The Virginia Plan sought to achieve federal supremacy by the introduction of a bicameral legislature. In simple words, a bicameral legislature is a system under which there are two houses of the Parliament that take policy-making decisions for the country. This Plan sought to divide the country’s legislature into two houses, i.e., the upper house and the lower house. The lower house was supposed to have a composition of elected representatives of the people and the number of representatives from each state was to be determined on the basis of population along with certain other factors. On the other hand, the upper house was supposed to have a composition of elected representatives of the members of the lower house. The eligibility of standing in elections for the upper house depended on the states who nominated such candidates. It is also pertinent to note that the Plan proposed to give the lower house a shorter tenure as compared to the upper house. The legislature as a whole was given supreme powers that included the powers to enact legislation that would be applicable to all the states, enter into foreign agreements and draft foreign policies, the appointment of government officials and judges, etc. Another important power granted to the legislature was the power to veto and reject any law passed by the state legislature if such laws were violating the Constitution or any national legislation.
In today’s modern-day era, one could find bicameral legislatures being successfully implemented in India, France, Italy, Canada and even in the United States of America, except for the state of Nebraska which follows a unitary form of government.
The judicial system of the country was again divided into two parts, i.e., the creation of one or more national-level courts and the creation of multiple subordinate courts. The jurisdictions and the types of matters that were to be dealt with by these courts differed from one another. Also, the courts were authorised to conduct an impeachment process for the officers of the federal government.
The Council of Revision
The Virginia Plan provided for the creation of another organ in the name of the ‘national executive’. Members of the national executive were to be elected by both houses acting together and these members were given the power to execute all laws passed by the legislature. However, the executive was not the third branch of government as proposed under the Virginia Plan, but it was the Council of Revision that was given the role of being the third branch. This Council was to consist of members from both the national executive and the judiciary and they were given one important task, i.e., to veto and reject the implementation of any law that has been passed by the legislature. However, if the law that was rejected by the Council was again passed by the legislature with an excessive majority, the power of veto could not be exercised again by the Council. The percentage of excessive majority required in such cases was not provided under the Plan.
With the introduction of this Plan, James Madison directly attacked the very foundation of the Articles of Confederation. The representatives from other states after hearing this Plan passed a resolution to begin a Committee of the Whole House for further discussion on the same.
Committee of the Whole
This Committee was no different than the Convention itself. The representatives of the states who acted as members of the Convention now became members of the Committee. The distinguishing factor between the Convention and the Committee was that the representatives could indulge in a more informed debate as members of the Committee. Also, to start the Committee on a different note, George Washington was replaced by the representative of Massachusetts Mr Nathaniel Gorham as the stand-in President of the Committee. It is pertinent to note here that even if any decision was taken by the Committee by passing a resolution, it would not be deemed to be binding on the Convention itself and acted only as the recommendations that were made to the Convention. The Convention could, after the dissolution of the Committee, conduct debates on the recommendations and vote on the question of whether the recommendations should be accepted or not. The functioning of this Committee could be divided into three stages, i.e., the discussions on the Virginia Plan, the introduction of the New Jersey Plan and the introduction of the Hamilton Plan. Now let us look into these three stages in detail.
Discussions on the Virginia Plan
The Committee spent almost half its time to debate over the pros and cons of the Virginia Plan. In the course of these debates, multiple provisions of the Virginia Plan were examined, revised and even removed. For example, the Committee discussed in detail the composition of the national executive and came to the conclusion that instead of appointing a body of individuals who would be the members of the national executive, there should only be one person who would deal with the executive matters of the country. Regarding the appointment of such a person, it was decided that an election will be conducted once every 7 years for electing the national executive and only the members of the legislature were entitled to cast their votes in this election. Also, the power of veto that allowed the Council of Revision to reject laws passed by the legislature was shifted to the national executive. However, if both houses of the legislature, with a two-thirds majority, voted against the veto applied by the national executive, the veto will be cancelled and the laws in question will be deemed as effective legislation passed by the legislature. With respect to the removal of the national executive by impeachment before the completion of his term, the Committee settled on two grounds, i.e., indulgence in malpractices and intentional omission of the duties imposed on the national executive.
The Committee then moved on to discuss the system of the bicameral legislature that was suggested by the Virginia Plan. Firstly, they set the terms for the upper house and lower house as 7 years and 3 years respectively. Following this, they decided that the elected representatives of both houses would be prohibited to hold any position in any private office so as to avoid conflict of interest while performing public duties. One important aspect of the Virginia Plan that the Committee decided to avoid was the power of veto granted to the national legislature to reject any law passed by the state legislature if such laws were violating the Constitution or any national legislation.
Coming to the judicial system, the Committee decided that there should be one national-level court that will have superintendence and supervisory powers over all other courts in the country. They further noted that the appointment of judges fell within the domain of the upper house and that such appointment shall be permanent in nature.
The New Jersey Plan
The Articles of the Confederation, although weak to provide for a system of unification of all states, empowered the states in one, i.e., equal representation for all states in the legislature irrespective of the state population. According to this, every state had one vote in the legislature, irrespective of the population of the state. This ideology also formed the core ideology of the Convention. However, the same was under threat because of the provisions under the Virginia Plan that provided for an election to the lower house based on the population of each state, i.e., states that were more populous would have more representatives in the lower house. This threatened the states with lower populations because they feared their voices will go unheard and the big states could utilise their majority in the lower house to pass laws in self-interest without considering the impact on the smaller states. To combat this threat, the smaller states came up with another Plan that is infamously known as the New Jersey Plan which was drafted by the representative of New Jersey, Mr William Paterson. The whole intent behind the introduction of this Plan was to protect the existing voting power that each state had in the legislature that was provided by the Articles of Confederation.
Contrary to the provisions of the Virginia Plan that called for the enactment of a new Constitution by substituting the Articles of Confederation, the New Jersey Plan took a new route wherein it called for the extension of the current system under the Articles of Confederation. It proposed that instead of creating 3 new branches of the national government, 2 new branches could be added to the existing system under which the national Congress operated, i.e., an executive and a judicial branch. Herein, the executive was to be a body that could be appointed by the National Congress for a single term. The power to remove the executive was also given to the National Congress. However, this power could only be exercised if an application in this regard was made by a majority of the executive. This new body of executive was to consist of the Governors of all the states and they were empowered to enforce the laws passed by Congress by using any available means at their disposal.
Coming to the judicial branch, the Plan proposed that a supreme court should be established and this court will have superintendence and supervisory powers over all other courts in the country. Further, the appointment of judges fell within the domain of the executive and such appointment shall be permanent in nature.
The Congress itself was granted multiple powers including enacting legislation that governed the foreign policy of the country, legislations for imposition and levy of taxes and legislation that governed inter-state and international trade and commerce. Also, the laws passed by Congress were deemed as national legislations and had to be followed by the people living in all the states of the country.
Alexander Hamilton, the representative for New York was not moved by suggestions of the other representatives made under the Virginia Plan or the New Jersey Plan. Even though America had just begun to enjoy its newfound freedom from the British colonies, he was of the view that the British form of government was the way forward for America. According to him, the system of government that was being followed in Great Britain was the best in the world and there could be no other system which was capable of substituting that. Thus, he proposed the institution of a government structure that was based on the government of Great Britain.
According to his Plan, the national government of the United States would be the head of the union and would preside over all the states. Coming to state-level governments, he proposed the appointment of governors in every state by the national government itself. These governors were entitled to exercise veto powers for rejecting the laws passed by the state legislatures. Like the bicameral system of the legislature being followed in Great Britain, he suggested the formation of a bicameral legislature in America as well wherein the lower house represented the House of Commons and its members were to be elected by the people of individual states. The tenure of this house was limited to 5 years. On the other hand, the upper house represented the House of Lords and its members were to be appointed by the lower house on a permanent basis.
However, it is to be noted that Hamilton was against the notion of a constitutional monarchy that was being followed in Great Britain. Therefore, he suggested that an executive wing of the government should be established. The members of the executive were to be appointed by the members of the lower house on a permanent basis and they were given a wide range of powers. This included the power to veto and reject the laws passed by the national parliament, the power to take decisions at times of war, the power to pardon criminal offences, the power to appoint the heads of all the government departments and most importantly, the power to enter into international treaties and agreements. These powers granted to the executive are similar to the powers granted to the Crown under the British form of government.
Decisions of the Committee
The Committee of Whole debated and gave their opinion on every Plan that was set forth by the representatives. After a clause-by-clause examination of each Plan, the Committee voted on the Plans one after the other. Firstly, while dealing with the Hamilton Plan, the Committee was of the view that a British form of government would not be acceptable to the society at large who had just come out of the British rule and the atrocities they committed in the name of English laws. Thus, this Plan found no support and was vehemently dismissed by all the representatives of the Committee. However, it is important to note here that some of the propositions under this Plan like the powers of the executive to pardon criminal offences and to enter into international treaties and agreements were accepted and granted to the President of the United States by the Convention later.
Coming to the New Jersey Plan, out of the 10 states that were in session, 7 voted against it. The primary reason behind the rejection of this Plan was that the voting power of the states that had more population was being curtailed in the legislature. The states like Virginia, Massachusetts, Georgia, North and South Carolina, Pennsylvania, etc., that had large populations, wanted to have more voting power in the legislature and in order to gain this objective, they voted against the adoption of this Plan.
The last in line was the Virginia Plan. After multiple amendments to the Plan as discussed below, the Committee of the Whole was of the collective opinion that the adoption of the Virginia Plan would be the best possible solution to the existing exigencies of the country. Thus, they adopted the Plan and referred it to the Convention in the form of a recommendation to further discuss the same. The suggested amendments are listed below:
- The initial tenure of the lower house set under the Virginia Plan was 3 years. The Committee sought to reduce the tenure to 2 years and settled on the age of 25 as the minimum age to participate in the elections for the lower house.
- The recommended tenure for the upper house under the Virginia Plan of 7 years was also sought to be reduced to 6 years by the Committee. Further, the election to the upper house was to be conducted at different times so that election for at least one-third of positions in the upper house is conducted once in 2 years.
- The provision granted the power of veto to the national legislature to reject any law passed by the state legislature if such laws were violating the Constitution or if any national legislation was removed.
- A new provision was added according to which any law passed by the national legislature or any international treaty or agreement entered into by the national legislature would be binding on all the states.
- New rules and regulations would be enacted that would regulate the acquisition and ownership of properties by the members of the national legislature.
The 1st Convention debate
After the Committee of the Whole concluded its proceedings, the approved Virginia Plan was laid on the table of the Convention for its consideration. As the debate began, the battle between the smaller and larger states resumed regarding equal representation in the national legislature. The smaller states called for equal voting rights for all the states whereas the larger states called for a voting system that was proportionate to the population of the state. To resolve the same, a special committee was constituted which consisted of one member from each state.
This Committee came to the conclusion that the members of the lower house shall have a voting share proportionate to the population of the state they represent while the upper house shall follow the existing system under the Articles of Confederation, i.e., one vote per state.
The Convention reviewed the submissions of the special committee and voted in the favour of its findings. However, in a matter of days, the Convention was again debating on the issue of representation in the upper house and it came to the conclusion that there would be 2 representatives from each state in the upper house. These representatives will have one vote each and they were free to act independently without any influence from each other or the government of the state they represent. It is pertinent to note that the evil of slavery prevailed in America during those days. While debating on the representation of people in the lower house, the Convention came to the conclusion that even slaves can be elected to the lower house. However, when it came to the voting rights of slaves in the house, their vote was counted as merely three-fifths of a single vote.
After the conclusion of this debate, the Convention decided to appoint a new Committee for the purpose of reviewing the decisions taken by the Committee and drafting the Constitution. This Committee is known as the Committee of Detail. Let us now try and learn more about this Committee.
The Committee of Detail
At the end of the first Convention debate, the important task that lay ahead of the representatives was to review their decisions and draft a Constitution. This object was sought to be achieved by the means of the recommendations made by this Committee. Unlike the Committee of the Whole which comprised all the representatives, this Committee only consisted of 5 members namely Nathaniel Gorham, James Wilson, John Rutledge, Edmund Randolph and Oliver Ellsworth. The Committee started by reviewing the resolution passed by the Convention that adopted the amended Virginia Plan. While reviewing the Plan, it also started to draft the Constitution. Apart from the resolution, the Committee also looked into the provisions of the New Jersey Plan, the Articles of Confederation, existing laws and state Constitutions while drafting the U.S Constitution.
To begin with, the Committee renamed several provisions under the resolution in a manner as we know them today. This includes substituting the executive with the President, establishing the Supreme Court as the national tribunal, and renaming the lower house as the House of Representatives and the upper house as the Senate. In doing so, it also defined the jurisdiction of the Supreme Court and the powers vested in the President and established multiple rules of procedure that were to be followed by the President and the national legislature.
Under the Articles of Confederation, the national legislature was empowered to enact laws regarding any matter notwithstanding the impact it has on the states. The national legislature was not even bound to listen to the interests of the state legislatures while enacting laws. However, since the Convention was clear on the application of legislation passed by the national legislature in all the states, the Committee felt the need to limit the areas in which the national legislature could exercise this absolute power. Thus, they drafted a list of 18 subjects on which the national legislature had absolute jurisdiction to enact laws. This list included the subjects of inter-state trade, collection and levy of taxes, wage war, establishing courts, etc. However, a general clause was added to the list which gave the national legislature to enact any law that was necessary to execute the powers vested in it. The Committee also limited the powers of the state legislatures to a certain extent by disallowing them to enter into international treaties and agreements, print their own currency, impose or levy state-level taxes, etc.
The executive, i.e., the President was given several powers by the Committee. This included the powers of issuing pardons to criminals, taking steps to ensure the smooth execution of the state laws, recommending the enactment of new laws as he deems fit to the national legislature, etc. It also introduced a provision that allowed the members of the upper house to elect a representative to act as the interim President in case the President dies, resigns or suffers from any physical or mental incapacity. Coming to the judiciary, the Committee defined the jurisdiction of the courts and provided that the courts have jurisdiction over all disputes that arose between two or more states, the individuals who lived in America and any dispute between the state and its citizens.
It is also important to note that a provision regarding slavery was also added by the Committee. According to this provision, the national legislature was prohibited from imposing any tax on the import of slaves from other countries or banning the import of slaves in general. Further, it gave the national legislature to enact navigation laws, with a two-thirds majority, that mandated the export of American goods only through American ships. In total, they drafted a constitution that was 3700 words long.
The 2nd Convention debate
Following the submission of the draft constitution by the Committee to the Convention, the Convention reviewed and debated the provisions of the constitution. As a result of these debates, multiple provisions of the constitution were amended by the Convention. The amendments have been listed below:
- A new provision was added regarding the eligibility of the citizens who wanted to stand in elections for the national legislature. Any person who wanted to stand in the elections of the House of Representatives had to be an American citizen for at least 7 years and in the case of the Senate, the person had to be an American citizen for at least 9 years. Also, only individuals who naturally resided in a particular state could compete in the elections from that state.
- In case the President has used the power of veto and prohibited the enactment of any particular law, the national legislature could, by a three-fourth majority, override the veto of the President and go forward with enacting and implementing the law.
- The power of the national legislature to make war came with an inherent flaw. In case, a war occurred when the national legislature was not in session, it could not pass a resolution to make war. Thus, the provision was revised to state that the national legislature had the power to declare war and in absence of such declaration, the President had the power to do so.
- The enactment of criminal laws ex-post facto was strictly prohibited. Also, it prohibited the enactment of laws that would punish individuals for crimes without a proper trial.
- The national legislature and the President were prohibited from allotting any form of title or nobility to any individual irrespective of their stature. It also prohibited all public officials from receiving any form of title or gift from any foreign nobility or from the government of any foreign state.
- The national legislature was given the authority to deploy the military to implement laws in any state, and for suppressing any rebellions, civil wars or invasions from foreign states.
- They added an important provision to govern any future amendments in the Constitution. This was called the Convention method. Under this method, if the state legislatures formed a two-thirds majority, they could call on the national legislature to form a Convention for the amendment of the Constitution.
- The requirement for a two-thirds majority for the enactment of navigation laws was set aside.
- They inserted a provision that allowed persons of all religions to hold public offices.
- For adopting the Constitution at least two-thirds of the states should vote to ratify the Convention. It is important to note that this requirement did not call for ratification by the state legislatures but state conventions formed in this regard.
One of the primary issues that were identified under the Constitution was its attitude towards the aspect of slavery in the country. The states from the northern part of the country were the first to react to this crisis that surrounded slavery. There were 2 major provisions that were under attack, i.e., the voting power of the slaves in the House of Representatives and the provision that prohibited the national legislature to enact laws to ban the import of slaves into America. The reason why the northern states were against slavery was that the north of the country was comprised of factories and farms giving rise to a mixed economy. There was a negligible number of slaves employed in these domains. However, the southern part of the country based their economy on Plantations and they employed slaves to work in these Plantations. The northern states were of the opinion that, in a free world, slaves should be free as well. If slaves were not freed, foreign powers may take action against the USA for importing people from their countries in the name of slavery and the north, which was against slavery would also have to pay the price for it because of the southern states. This strong-headed argument of the north was met with an even argument from the southern states. They threatened that the state conventions in the south will not ratify the constitution if the provision allowing slavery were removed from it.
Like the Special Committee that was constituted by the Convention to resolve the disputes between larger and small states regarding equal representation, the Convention once again constituted a special committee to find a solution to this problem. The Committee proposed to amend the constitution and allow the national legislature to ban the import of slaves after the year 1800. They also recommended adding a provision that would allow the national legislature to impose and levy tax on importing slaves. When these recommendations were made to the Convention, it was once again heavily debated but were finally accepted by the Convention with a minor change. The year 1800 was amended to 1808.
Though this issue was resolved, several issues remained that were addressed in the Convention to which there were no solutions. To resolve this issue, the Convention again constituted a Committee on Postponed Matters. This Committee consisted of one member from each state and was tasked to find solutions to all the issues raised in the Convention. Let us now try and understand the findings of this Committee.
Committee on Postponed Matters
Like the other committees formed by the Convention, the Committee on Postponed Matters also had a new President. This time, it was presided over by the representative of New Jersey, Mr David Brearly. In total, the Committee had 11 members. To begin with, this Committee focused on the provisions with respect to the election, term and powers of the head of the executive, i.e., the President. Firstly, it came to the conclusion that the term of the President should be reduced to 4 years rather than continuing with the proposed term of 7 years under the Constitution. They also inserted provisions that allowed for the reelection of a President after the completion of his term.
Regarding the election of the President, they proposed that instead of the members of the national legislature casting their votes in the Presidential election, an electoral college should be formed with the exclusive function of electing the President. This electoral college was to be comprised of such a number of representatives of each state proportional to the number of representatives the states have in the House of Representatives and the Senate combined. However, it prohibited the states from electing the same members into the electoral college who had been already elected into the House of Representatives or the Senate. This electoral college would then cast its votes in the Presidential elections and the candidate who would have received the maximum majority would be declared the President of the United States. The Committee also added a unique proposition that was not discussed earlier by the Convention or any of the Committees, i.e., the election of a Vice President for the country. They noted that the candidate who would secure the second highest majority in the Presidential elections would be declared as the Vice President of the United States. It also noted that in case no candidate was able to secure a majority in the Presidential elections, the candidates who received the highest and second highest number of votes will be declared as the President and the Vice President of the country respectively. It also included provisions for a situation wherein the votes in the electoral college ended up in a tie. In such cases, it authorised the Senate to elect the President and Vice President by conducting a vote in Senate.
The Committee also established the eligibility criterion for an individual to participate in the Presidential elections. To be elected as the President of the United States, every candidate had to be either a natural citizen of the country by the virtue of his birth or should have gained citizenship of the country on or before the entry into force of the Constitution. Also, the minimum age for contesting in the elections was set to be 35 years and a condition regarding residency was also added according to which each candidate had to be a resident of the United States for at least 14 years. Along with this, the Committee also proposed the grounds on which the President could be impeached and these grounds included treason, bribery and crimes or misdemeanours committed against the country. The Senate was authorised to raise and conduct the impeachment proceedings against the President and a two-thirds majority was required to successfully remove the President from his office.
The Committee then moved on to introducing provisions governing the powers and functions of the Vice President. Firstly, the Vice President was made the President of the upper house, i.e., the Senate and he was to preside over all the meetings of the Senate. He was also given the power to cast his vote in the Senate to break any ties that occurred while passing laws. Further, the Vice President was authorised to act as the interim President in case the President died, resigned or cannot perform his duties due to physical or mental incapacity. Like the President, the authority to impeach the Vice President was also vested with the Senate on similar grounds and a two-thirds majority was required to successfully remove the Vice President from his office.
The 3rd Convention debate
After the Committee on Postponed Matters submitted their recommendations to the Convention, the provisions were heavily debated once again. As a conclusion to this debate, the recommendations regarding establishing an electoral college and an office for the Vice President were agreed upon by the representatives in the Convention. However, they also made some significant changes to the same. The power of the Senate to elect the President in case of a tie in votes of the electoral college was shifted to the House of Representatives. Also, the voting powers of the members of the House of Representatives were reduced in such circumstances and each state was authorised to cast only one vote. With respect to a similar situation arising in the case of electing the Vice President, the Senate was allowed to retain its power to elect the Vice President with each state having one vote.
Due to the fact that the House of Representatives had a population-based voting share compared to an equal voting share in the Senate, the larger states were worried that if matters regarding the financial aspects of the country were introduced in the Senate first, they would not be able to use their majority to their advantage. Thus, they argued for the introduction of money bills only in the House of Representatives and after several heated debates, this was agreed upon by the Convention. Apart from this, the larger states also called for the introduction of multiple provisions so as to limit the powers of the Senate. As a result, several powers that were vested in the Senate were transferred to the President. This included the powers of entering into international treaties and agreements and appointing ambassadors, judges, and officers who would serve as heads of public offices. Regarding appointments, the Senate had the power to vote to confirm such appointments and a simple majority was enough for the same. However, for the ratification of international treaties and agreements, a special majority, i.e., a two-thirds majority was required.
After this debate concluded, the Convention called for the constitution of a new committee that would be responsible for including all the provisions discussed, i.e., a total of 23 articles, and preparing a final draft of the United States Constitution. This Committee was called the Committee of Style and was led by James Madison. It had 5 members in total. Let us not look into the works of this Committee and the final stages of the Convention.
Final stages of the Convention
With the Committee of Style tasked with drafting a formal Constitution, the Convention continued to debate and make amendments to the agreed-upon provisions. This began with the issues raised by James Madison regarding the constitution of a special constitutional convention every time for amending the constitution, According to him, this would be a time-consuming process and would amount to a waste of resources and undue delays in the implementation of important laws. To substitute the same, he suggested the establishment of a new mechanism wherein the call to amend the Constitution could be made in two situations. Firstly, if the national legislature itself wants to amend the Constitution, it should seek approval of at least three-fourths of the states of the country who had ratified the Constitution and to successfully amend the constitution it had to pass the amending act with at least two-thirds majority. Secondly, if the action for amending the Constitution was to be initiated by the state legislature, the concerned state would have to seek a two-thirds majority vote from all state legislatures and the approval of at least three-fourths of states of the country that had ratified the Constitution. This recommendation by James Madison was approved by the Convention and passed on to the Committee of Style. Next in line was an amendment that was suggested by the representative of North Carolina, Mr Hugh WIlliamson. He proposed to reduce the majority required for overriding the veto power exercised by the President from a three-fourth to a two-thirds majority. This recommendation was also approved and forwarded to the Committee of Style.
Coming to the other important issues that were being debated, Edmund Jennings Randolph, a representative from Virginia was against the proposition that the Consitution should be ratified by the State Constitutional Conventions only. He justified his stand on the basis of the mandate of the Commission itself which was formed to recommend changes in the Articles of Confederation so that the national Congress could resolve the escalating rebellions and other issues in multiple states. He argued that instead of doing this, the Convention from the beginning focused on drafting a new Constitution for the United States and thus it is necessary that not just the State Constitutional Conventions, but also the state legislatures and the existing national legislature should vote for the ratification of the Constitution. This would make the Constitution more acceptable to the states and the people rather than it being imposed on them by the State and National Constitutional Conventions. Another important issue that was raised by the representatives of Virginia and Massachusetts, Mr George Mason and Mr Elbridge Gerry respectively was the exclusion of the Bill of Rights from the Constitution. They believed that the Bill of Rights was fundamental in nature and that its inclusion in the Constitution was an absolute necessity. However, the Convention did not consider this issue and decided against the same.
The recommendations of the Committee of Style
While the Convention debated on these issues, the Committee of Style completed its work and presented to the Convention its final draft of the Constitution. This draft reduced the original number of Articles to 7 and also contained some new provisions. Most importantly, it included a preamble to the Constitution that stated the object behind the enactment of the new Constitution. It stated that the primary object of the Constitution was to unite the individual states of the country under a single head and ensure justice, peace, protection and welfare for the people of all states. Other than the preamble, the draft included provisions that prohibited states from breaching contracts with individuals or other states and also vested the powers under the Constitution to the national legislature and the President of the country.
Further modifications by the Convention
The recommendations made by the Committee of Style were lauded by all the representatives at the Convention. However, the Convention still continued to make multiple changes to the same. The power of the national legislature to appoint the national treasurer was now brought under the domain of the Presidential powers. Further, a provision was included that prohibited any Amendment to the Constitution through which the equal voting rights being enjoyed by the states in the Senate could be stripped off. Such rights could be taken away only if the state consented to such a proposition prior to the concerned Constitutional amendment.
Another important amendment made to the final draft was regarding the amendment of the Constitution and this was in line with the issues raised by James Madison with a slight modification. The Constitution could be amended in two scenarios. Firstly, if the national legislature itself wanted to amend the Constitution, it would have to seek the approval of at least three-fourths of states of the country that had ratified the Constitution and to successfully amend the constitution it had to pass the amending act with at least two-thirds majority in both the houses. Secondly, if two-thirds of the state legislatures formed a majority and called for the constitution of a Constitutional Convention to amend the Constitution, the national legislature would have to form the same. However, the state legislatures will have to obtain the approval of at least three-fourths of the states of the country that had ratified the Constitution
Conclusion of the Convention
After these issues were settled and changes were made to the final draft, the Convention finally came to an end on September 17 1787 and the final draft was put forth on the table to be signed by all the representatives. On the last day, only 42 of the total 55 representatives were present in the Convention and out of these 42 representatives only 39 signed the Constitution while Edmund Jennings Randolph, George Mason, and Elbridge Gerry remained the exceptions due to the non-inclusion of their recommendations in the Constitution. With the signing of the United States Constitution, the Convention came to an end and the representatives at the Convention were later infamously known as the founding fathers of the United States Constitution.
Even though the United States Constitution was drafted in a period of 5 months, the instrument has stood the test of time and has passed with flying colours. Even after so many years, the document drafted by the Philadelphia Convention still forms the fundamental basis of the modern-day Constitution. Not only has it stood the test of time, but the object it sought to achieve, i.e., the unification of the country and resolving the existing exigencies of that time was also achieved successfully. After its enactment, the states came together under one head and with time, they resolved the nation’s internal and external issues. If not for the Philadephia Convention, the series of events that led to the creation of global power would not have occurred. Thus, not only was the Convention important for the drafting of a new constitution, it was one of the first steps toward shaping the future of the country.
Frequently asked questions (FAQ’s)
Why was George Washington unanimously elected as the President of the Constitutional Convention?
George Washington was the military General of America post-independence and led the American Revolutionary Army to victory against the British. Because of this, he was highly respected by American society and was looked up to as a natural leader. Thus, he was unanimously elected as the President of the Philadelphia Convention and was also elected as the 1st President of the United States thereafter.
How many states participated in the Philadelphia Constitutional Convention?
At that time, only 13 states were recognised in America. Out of these 13, 12 states participated in the Philadephia Convention with the exception of Rhode Island. This was because they believed that the Constitution would make the executive extremely powerful at the expense of the states. Prohibiting the states from printing paper currency was one of the reasons as well.
What is the process for amending the US Constitution now? Was any Constitutional Convention formed after the Philadephia Convention for amending the Constitution?
As per Article 5 of the US Constitution, the Constitution can be amended in 2 ways, i.e., by introducing and passing the amendment in the legislature with a three-fourths majority or by forming a constitutional convention to amend the Constitution. As of today, no national-level constitutional conventions have been called to amend the Constitution. The national legislature has passed 33 amendments to the Constitution. Coming to state Constitutional, there have been more than 230 Constitutional Conventions that were formed to amend state Constitutions to date.
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