The Meaning of the Constitution

[Tidewater]

That's got to be a misprint on North Carolina. They voted twice. First vote was 75 for and 1993 against. That is a lot of legislators. Less than four months later the vote was 194 for and 77 against.

Yes, I noticed that and corrected the typo.
Imagine a legislative body with 2068 members. Might be unwieldy.

 

[Tidewater]

Wilson continued on the relationship between the people, the governments (state and federal) and governmental powers"

"When the principle is once settled that the people are the source of authority, the consequence is, that they may take [page 444] from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people? When I say the majesty of the people, I mean the thing, and not a mere compliment to them. …"

 

[Tidewater]

December 4, 1787, Mr. Wilson continued on the subject of a Bill of Rights, the sovereignty of the people, and the enumeration of federal powers:
“…A good deal has already been said concerning a bill of rights. I have stated, according to the best of my recollection, all that passed in Convention relating to that business. Since that time, I have spoken with a gentleman [Ed. probably Madison, who kept a journal], who has not only his memory, but full notes that he had taken in that body, and he assures me that, upon this subject no direct motion was ever made at all; and certainly, before we heard this so violently supported out of doors, some pains ought to have been taken to have tried its fate within; but the truth is, a bill of rights would, as I have mentioned already, have been not only unnecessary, but improper. In some governments, it may come within the gentleman's idea, when he says it can do no harm; but even in these governments, you find bills of rights do not uniformly obtain; and do those states complain who have them not? Is it a maxim in forming governments, that not only all the powers which are given, but also that all those which are reserved, should be enumerated? I apprehend that the powers given and reserved form the whole rights of the people, as men and as [start of page 454] citizens. I consider that there are very few who understand the whole of these rights. All the political writers, from Grotius and Puffendorf down to Vattel [Ed. political theorists of the day], have treated on this subject; but in no one of those books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens.

"Somewhere there is, and of necessity must be, a supreme, absolute, and uncontrollable authority. This, I believe, may justly be termed the sovereign power; … I stated, further, that, … the supreme, absolute, and uncontrollable authority remains with the people. …My position is, sir, that, in this country, the supreme, absolute, and uncontrollable [start of page 458] power resides in the people at large; that they have vested certain proportions of this power in the state governments; but that the fee-simple continues, resides, and remains, with the body of the people. …

We are informed 'that the state elections will be ill attended, and that the state governments will become mere boards of electors.' Those who have a due regard for their country will discharge their duty and attend; but those who are brought only from interest or persuasion had better stay away; the public will not suffer any disadvantage from their absence. But the honest citizen, who knows the value of the privilege, will undoubtedly attend, to secure the man of his choice. The power and business of the state legislatures relate to the great objects of life, liberty and property; the same are also objects of the general government.

Certainly, the citizens of America will be as tenacious in the one instance as in the other. They will be interested, and I hope will exert themselves, to secure their rights not only from being injured by the state governments, but also from being injured by the general government.

'The power over elections, and of judging of elections, gives absolute sovereignty.' This power is given to every state legislature; yet I see no necessity that the power of absolute sovereignty should accompany it. My general position [start of pg. 465] is, that the absolute sovereignty never goes from the people.

… I think I may venture to predict that the taxes of the general government, if any shall be laid, will be more equitable, and much less expensive, than those imposed by state governments.

I shall not go into an investigation of this subject; but it must be confessed that scarcely any mode of laying and collecting taxes can be more burdensome than the present.

Another objection is, 'that Congress may borrow money, keep up standing armies, and command the militia.' The present Congress possesses the power of borrowing money and of keeping up standing armies. Whether it will be proper at all times to keep up a body of troops, will be a question to be determined by Congress; but I hope the necessity will not subsist at all times. But if it should subsist, where is the gentleman that will say that they ought not to possess the necessary power of keeping them up?

It is urged, as a general objection to this system, that 'the powers of Congress are unlimited and undefined, and that they will be the judges, in all cases, of what is necessary and proper for them to do.' To bring this subject to your view, I need do no more than point to the words in the Constitution, beginning at the 8th sect. art. 1st. 'The Congress (it says) shall have power," &c. I need not read over the words, but I leave it to every gentleman to say whether the powers are not as accurately and minutely defined, as can be well done on the same subject, in the same language. The old Constitution is as strongly marked on this subject; and even the concluding clause, [Ed. i.e. the "necessary and proper" clause] with which so much fault has been found, gives no more or other powers; nor does it, in any degree, go beyond the Particular enumeration; for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and defined by the following, "for carrying into execution the foregoing powers." It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution. … [Ed. this is particularly important. Wilson is explicitly denying that the "necessary and proper" clause delegates any power. It is an enabling clause for the preceding list of powers that the Constitution delegates to the federal government.]

I am astonished to hear the ill-founded doctrine, that the states alone ought to be represented in the federal government [Ed. in the Articles of Confederation, states were represented in Congress, and each state got one vote]; these must possess sovereign authority, forsooth, and the people be forgot. No. Let us reascend to first principles. [start of page 479] That expression is not strong enough to do my ideas justice.

Let us retain first principles. The people of the United States are now in the possession and exercise of their original rights [Ed. I think Wilson meant in the Hobbesian or Lockean sense of that term] ; and while this doctrine is known, and operates, we shall have a cure for every disease. …

 

[Tidewater]

The penultimate Wilson quote. Again Wilson addresses the idea of whether this Constitution needs a Bill of Rights.

December 7, 1787, Mr. Wilson said. Gentlemen talk of bills of rights. [start of pg. 489] What is the meaning of this continual clamor, after what has been urged? Though it may be proper, in a single state, whose legislature calls itself the sovereign and supreme power, yet it would be absurd in the body of the people, when they are delegating from among themselves persons to transact certain business, to add an enumeration of those things which they are not to do. "But trial by jury is secured in the bill of rights of Pennsylvania; the parties have a right to trials by jury, which ought to be held sacred." And what is the consequence? There have been more violations of this right in Pennsylvania, since the revolution, than are to be found in England in the course of a century.

I hear no objection made to the tenure by which the judges hold their offices; it is declared that the judges shall hold them during good behavior;--nor to the security which they will have for their salaries; they shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

The article respecting the judicial department is objected to as going too far, and is supposed to carry a very indefinite meaning. Let us examine this: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States." Controversies may certainly arise under this Constitution and the laws of the United States, and is it not proper that there should be judges to decide them? The honorable gentleman from Cumberland (Mr. Whitehill) says that laws may be made inconsistent with the Constitution; and that therefore the powers given to the judges are dangerous. For my part, Mr. President, I think the contrary inference true: If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law. …

The next [objection to the Constitution] is, "to controversies to which the United States shall be a party." Now, I apprehend it is something very incongruous, that, because the United States are a party, it should be urged, as an objection, that their judges ought not to decide, when the universal practice of all nations has, and unavoidably must have, admitted of this power. But, say the gentlemen, the sovereignty of the states is destroyed, if they should be engaged in a controversy with the United States, because a suiter in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner. The answer is plain and easy: the government of each state ought to be subordinate to the government of the United States. … (Ed.: Note Wilson is speaking of the state governments, but not the people at large, who, as Wilson already said, are sovereign.)

 

[Tidewater]

And our final speech by Wilson.

December 11, 1787, Mr. Wilson said ... This, Mr. President, is not a government founded upon compact; it is founded upon the power of [start of pg. 498] the people. They express in their name and their authority--"We, the people, do ordain and establish," &c.; from their ratification alone it is to take its constitutional authenticity; without that, it is no more than tabula rasa.

I know very well all the common-place rant of state sovereignties, and that government is founded in original compact. If that position was examined, it will be found not to accede very well with the true principle of free government. It does not suit the language or genius of the system before us. I think it does not accord with experience, so far as I have been able to obtain information from history.

The greatest part of governments have been founded on conquest: perhaps a few early ones may have had their origin in paternal authority. Sometimes a family united, and that family afterwards extended itself into a community. But the greatest governments which have appeared on the face of the globe have been founded in conquest. The great empires of Assyria, Persia, Macedonia, and Rome, were all of this kind. I know well that in Great Britain, since the revolution, it has become a principle that the constitution is founded in contract; but the form and time of that contract, no writer has yet attempted to discover. It was, however, recognized at the time of the revolution, therefore is politically true. But we should act very imprudently to consider our liberties as placed on such foundation.

If we go a little further on this subject, I think we shall see that the doctrine of original compact cannot be supported consistently with the best principles of government. If we admit it, we exclude the idea of amendment; because a contract once entered into between the governor and governed becomes obligatory, and cannot be altered but by the mutual consent of both parties. The citizens of united America, I presume, do not wish to stand on that footing with those to whom, from convenience, they please to delegate the exercise of the general powers necessary for sustaining and preserving the Union. They wish a principle established, by the operation of which the legislatures may feel the direct authority of the people. The people, possessing that authority, will continue to exercise it by amending and improving their own work. This Constitution may be found to have defects in it; hence amendments may 499 become necessary; but the idea of a government founded on contract destroys the means of improvement. We hear it every time the gentlemen are up, "Shall we violate the Confederation, which directs every alteration that is thought necessary to be established by the state legislatures only!" Sir, those gentlemen must ascend to a higher source: the people fetter themselves by no contract. If your state legislatures have cramped themselves by compact, it was done without the authority of the people, who alone possess the supreme power. [Ed. Again, the Articles of Confederation required the concurrence of every state legislature to amend. Until every state agreed to a proposed amendment, every state was bound by the prior agreement. Madison in the Constitutional Convention and Wilson here argue that by going directly t the people in state convention assembled, this difficulty could be "got around."]

I have already shown that this system is not a compact, or contract; the system itself tells you what it is; it is an ordinance and establishment of the people. I think that the force of the introduction to the work must by this time have been felt. It is not an unmeaning flourish. The expressions declare, in a practical manner, the principle of this Constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and, as to ourselves, we agree to it as individuals. …

Let us examine these objections: If this government does not possess internal as well as external power, and that power for internal as well as external purposes, I apprehend that all that has hitherto been done must go for nothing. I apprehend a government that cannot answer the purposes for which it was intended is not a government for this country. I know that Congress, under the present Articles of 501 Confederation, possess no internal power, and we see the consequences: they can recommend—they can go further, they can make requisitions; but there they must stop; for, as far as I recollect, after making a law, they cannot take a single step towards carrying it into execution. I believe it will be found, in experience, that, with regard to the exercise of internal powers, the general government will not be unnecessarily rigorous. The future collection of the duties and imposts will, in the opinion of some, supersede the necessity of having recourse to internal taxation. The United States will not, perhaps, be often under the necessity of using this power at all; but if they should, it will be exercised only in a moderate degree. The good sense of the citizens of the United States is not to be alarmed by the picture of taxes collected at the point of the bayonet. There is no more reason to suppose that the delegates and representatives in Congress, any more than the legislature of Pennsylvania, or any other state, will act in this manner. Insinuations of this kind, made against one body of men, and not against another, though both the representatives of the people, are not made with propriety; nor will they have the weight of argument. I apprehend the greatest part of the revenue will arise from external taxation. But certainly it would have been very unwise in the late Convention to have omitted the addition of the other powers; and I think it would be very unwise in this Convention to refuse to adopt this Constitution because it grants Congress power to lay and collect taxes for the purpose of providing for the common defence and general welfare of the United States.

What is to be done to effect these great purposes, if an impost should be found insufficient? Suppose a war was suddenly declared against us by a foreign power, possessed of a formidable navy; our navigation would be laid prostrate, our imposts must cease: and shall our existence as a nation depend upon the peaceful navigation of our seas? A strong exertion of maritime power, on the part of an enemy, might deprive us of these sources of revenue in a few months. It may suit honorable gentlemen, who live at the western extremity of this state, that they should contribute nothing, by internal taxes, to the support of the general government. They care not what restraints are laid upon our commerce; for what is the commerce of Philadelphia to the inhabitants on 502 the other side of the Alleghany Mountains? But though it may suit them, it does not suit those in the lower part of the state, who are by far the most numerous; Nor can we agree that our safety should depend altogether upon a revenue arising from commerce. …

It is objected to this system, that under it there is no sovereignty left in the state governments. I have had occasion to reply to this already; but I should be very glad to know at what period the state governments became possessed of the supreme power. On the principle on which I found my arguments,—and that is, the principle of this Constitution,—the supreme power resides in the people. If they choose to indulge a part of their sovereign power to be exercised by the state governments, they may. If they have done it, the states were right in exercising it; but if they think it no longer safe or convenient, they will resume it, or make a new distribution, more likely to be productive of that good which ought to be our constant aim.

 

[Tidewater]

Wilson concludes.

The powers both of the general government and the state governments, under this system, are acknowledged to be so many emanations of power from the people. The great object now to be attended to, instead of disagreeing about who shall possess the supreme power, is, to consider whether the present arrangement is well calculated to promote and secure the tranquillity and happiness of our common country. 503 These are the dictates of sound and unsophisticated sense, and what ought to employ the attention and judgment of this honorable body.

We are next told by the honorable gentleman in opposition, (as indeed we have been, from the beginning of the debates in this Convention, to the conclusion their speeches yesterday,) that this is a consolidated government, and will abolish the state governments.

Definitions of a consolidated government have been called for; the gentlemen gave us what they termed definition, but it does not seem to me, at least, that they have as yet expressed clear ideas upon that subject. I will endeavor to state their different ideas upon this point. The gentleman from Westmoreland, (Mr. Findley,) when speaking on this subject, says that he means, by a consolidation, that government which puts the thirteen states into one.

The honorable gentleman from Fayette (Mr. Smilie) gives you this definition: "What I mean by a consolidated government, is one that will transfer the sovereignty from the state governments to the general government."

The honorable member from Cumberland, (Mr. Whitehill,) instead of giving you a definition, sir, tells you again, that "it is a consolidated government, and we have proved it so."

These, I think, sir, are the different descriptions given to us of a consolidated government. As to the first, that it is a consolidated government, that puts the thirteen United States into one—if it is meant that the general government will destroy the governments of the states, I will admit that such a government would not suit the people of America. It would be improper for this country, because it could not be proportioned to its extent, on the principles of freedom. But that description does not apply to the system before you. This, instead of placing the state governments in jeopardy, is founded on their existence. On this principle its organization depends; it must stand or fall, as the state governments are secured or ruined.
[Ed. Wilson spoke a great deal in the Pennsylvania ratifying convention, but, having been in both the Philadelphia constitutional convention and the Pennsylvania ratifying convention, he was unusually well-positioned to comment.]

 

[Tidewater]

December 11, 1787, Thomas McKean was another advocate of ratification in the Pennsylvania convention. He said: [start of pg. 533]
The framers of this Constitution wisely divided the legislative department between the two houses, subject to the qualified negative of the President of the United States, though this government embraces only enumerated powers. In a single state, annual elections may be proper; the more so, when the legislative powers extend to all cases; but in such an extent of country as the United States, and when the powers are circumscribed, there is not that necessity, nor are the objects of the general government of that nature as to be acquired immediately by every capacity. [Ed. It was one of those ideas floating around at the time, from Montesquieu, that a large country, like the United States, would inevitably end up having a tyrannical government. Madison countered that, by limiting the powers of the general government, this tendency could be avoided.]

Another objection was taken from these words of the Constitution--"to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof." And, in declaring "that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land," this has at last been conceded, that, though it is explicit enough, yet it gives to Congress no further powers than those already enumerated. Those that first said it gave to Congress the power of superseding the state governments, cannot persist in it; for no person can, with a tolerable face, [page 538] read the clauses over, and infer that such may be the consequence. [Ed. Here McKean, an advocate of ratification, assures his compatriots that the "necessary and proper" clause delegates not additional powers. It is merely an enabling clause for the powers listed above.]

 

[Padreruf]

Wilson concludes.

The powers both of the general government and the state governments, under this system, are acknowledged to be so many emanations of power from the people. The great object now to be attended to, instead of disagreeing about who shall possess the supreme power, is, to consider whether the present arrangement is well calculated to promote and secure the tranquillity and happiness of our common country. 503 These are the dictates of sound and unsophisticated sense, and what ought to employ the attention and judgment of this honorable body.

We are next told by the honorable gentleman in opposition, (as indeed we have been, from the beginning of the debates in this Convention, to the conclusion their speeches yesterday,) that this is a consolidated government, and will abolish the state governments.

Definitions of a consolidated government have been called for; the gentlemen gave us what they termed definition, but it does not seem to me, at least, that they have as yet expressed clear ideas upon that subject. I will endeavor to state their different ideas upon this point. The gentleman from Westmoreland, (Mr. Findley,) when speaking on this subject, says that he means, by a consolidation, that government which puts the thirteen states into one.

The honorable gentleman from Fayette (Mr. Smilie) gives you this definition: "What I mean by a consolidated government, is one that will transfer the sovereignty from the state governments to the general government."

The honorable member from Cumberland, (Mr. Whitehill,) instead of giving you a definition, sir, tells you again, that "it is a consolidated government, and we have proved it so."

These, I think, sir, are the different descriptions given to us of a consolidated government. As to the first, that it is a consolidated government, that puts the thirteen United States into one—if it is meant that the general government will destroy the governments of the states, I will admit that such a government would not suit the people of America. It would be improper for this country, because it could not be proportioned to its extent, on the principles of freedom. But that description does not apply to the system before you. This, instead of placing the state governments in jeopardy, is founded on their existence. On this principle its organization depends; it must stand or fall, as the state governments are secured or ruined.
[Ed. Wilson spoke a great deal in the Pennsylvania ratifying convention, but, having been in both the Philadelphia constitutional convention and the Pennsylvania ratifying convention, he was unusually well-positioned to comment.]

As an interesting note, though the Civil War decided that states cannot secede, that has never been made by any "legal" means, i.e. a court of law, i.e, the Supreme Court. I thought Texas might challenge this a few years ago -- they were crazy enough to do so.

 

[Tidewater]

On December 11, 1787, Thomas McKean (another advocate of ratification) responded to the objection "that there is no bill or declaration of rights in this Constitution."

To this I answer, such a thing has not been deemed essential to liberty, excepting in Great Britain, where there is a king and a House of Lords, quite distinct, with respect to power and interest, from the rest of the people; or, in Poland, the pacta conventus, which the king signs before he is crowned; and in six states of the American United States.

Again, because it (a Bill of Rights) is unnecessary; for the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys. (Locke On Civil Government, vol. ii, b. 2, chap. 2, sect. 140, and in the 13th chap., sect, 152.) [Ed. The English Bill of Rights was necessary because the King-in-Parliament was sovereign. The British government could do anything not prohibited by the Bill of Rights. As Wilson and McKean observed, the powers of the federal government were different. The federal government could only exercise those powers "enumerated and positively granted."]

With respect to executive officers, they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them. [Ed. This is a bit ambiguous. Either (a) executive officers cannot execute anything except what the legislature authorizes them to do or (b) executive officers can only do what the Constitution authorizes them to do. Either way, McKean believed that the executive branch is limited in what it can do.]

 

[Tidewater]

Pennsylvania ratified the Constitution 46-23 on Dec. 12, 1787.
On Dec. 11, 1787, New Jersey started her convention.
Elliot's Debates do not record the proceedings of the New Jersey convention, but they were brief (11-18 Dec, 1787).

George Mason of Virginia had been a delegate to the federal convention and later had published a list of objections to the Constitution. The day after New Jersey ratified, the New Jersey Journal noted Mason's objections and responded to them:

A correspondent has sent us the following answer to Mr. Mason’s objections to the new Constitution, contained in our Journal of the 12th instant. First, the bill of rights. Could there have been greater solecism of politics than for a people in the undisturbed and indisputable possession of the absolute sovereignty of a country (and about to delegate a necessary portion of power to a small number of their own body, for the good of the whole) to form a declaration of rights, which they mean to retain when, at first blush, they must necessarily be still vested with all power and sovereignty not expressly given away by their act of delegation. … [Ed. a bill of rights is unnecessary since the people possess all power.]

I believe every man of common sense would say that the people, or the sovereign power, cannot be affected by any such declaration of rights, they being the source of all power in the government; whatever they have not given away still remains inherent in them. Would not a private man be thought an idiot who in making a letter of attorney to another, authorizing him to sell his house in New York, should insist on a covenant that the attorney should not presume to sell his house in Philadelphia; or should insist on an express declaration that he meant to retain the fee of the residue of his estate. … [Ed. Several delegates to the state conventions (Wilson in Penn., Iredell in NC, and this author) used this power of attorney analogy. Principals delegate powers to their attorneys for certain purposes and do not need to expressly retain any other powers, because the delegation itself contains the limits of the delegation. What principal would argue with his attorney over the extent of the powers delegated? The principal is the principal and owns all the powers.]

In America (thanks to the interposing providence of GOD!) the people hold all power not by them expressly delegated to individuals, for the good of the whole. The governors, therefore, may call for the Constitution to show their rights and powers, but the people want no written bill of rights to prove their authority. … [Ed. The Constitution is safe to ratify because silence means the people retain any contested power.]


[Ed. Mason had argued that the federal judiciary would swallow up the state judiciaries.] In what instance does the judiciary of the United States absorb and destroy the judiciaries of the individual states? I answer, in none; but they will rather go hand in hand together and each be subservient with the other for the good of the whole. …

[Ed. Mason had argued that the Constitution does not provide for a constitutional council to resolve constitutional issue.] I have always thought that the representatives of the people, in parliament assembled, were the most constitutional council an executive department could possibly have.

[Ed. New Jersey ratified the Constitution 38-0 on Dec. 18, 1787.]

 

[BamaFlum]

Love these posts. Thank you!

 

[Tidewater]

Georgia debated the Constitution behind closed doors and only for four days (and some of this was taken up with electing a presiding officer, clerks, doorkeepers, a committee to draft the rules of the convention, then adopt those rules, etc. In other words, they did not discuss he Constitution for long.)
Facing Creeks and Cherokees to the west and northwest, and Spaniards to the south, Georgia was more concerned with a central government strong enough to protect Georgians from these threats.

There was a letter, around the time of the Georgia Convention, from Lachlan McIntosh to John Wereat, a delegate to the Georgia Convention, exploring the arguments for and against ratification and expressing an alternative to those two options:

If, therefore, we reject the whole or any part of it, I fear we will remain, for a considerable time at least, without remedy in the same unconnected state we now are in ... Upon the other hand, the objections made to this Constitution by Mr. [Elbridge] Gerry of Massachusetts, the Centinel of Pennsylvania [Ed. antifederalist author], and others who dare to express their minds upon it so early, tho perhaps overcautious, appear nevertheless to be very weighty, and if the remedy should prove worse than the disease, what reason will their constituents and posterity have to blame the Convention of Georgia in whom they confided and whose option it was to adopt or reject it for them. ... It may be thought prudent, at least for them at this time, to avoid the rocks on both sides of the question [of ratifying the Constitution or declining to ratify] instead of binding ourselves and posterity forever to adopt the Constitution only for a certain period of time during which they will have a fair trial of its effects, and at the expiration of that time be at liberty and have it in their own power to adopt it again if they please for another period, either without or with any amendments they may find necessary, which probably will hereafter be done by conventions, as the precedent is now set which is a new and far better method of settling public differences than the old way of cutting one another’s throats. If we bind ourselves and our posterity now, by adopting this Constitution without any conditions or limitation of time, any efforts made thereafter for redress of grievances must be termed rebellion, as it will be impossible to obtain amendments in the mode proposed when the majority, which is observed will ever be against the Southern States, find it their interest to continue them, and men of influence are once fixed in their saddles.

[Ed. Two points. First, McIntosh evidently believed that the people of Georgia could explicitly adopt the Constitution with reservations or a definitive end date, and during the time between ratification and that sunset, the people of Georgia could "test drive" the Constitution. At the conclusion of that time, if they found it unsatisfactory, they would withdraw their ratification automatically. On the other hand, he evidently believed that ratifying without any reservations, and then subsequently attempting to "redress grievances" in the Union would be considered a "rebellion."

Georgia ratified unanimously on Dec. 31, 1787.

 

[Tidewater]

The next state in the hit parade was Connecticut.
The Nutmeg State held its elections on Nov. 12, 1787, and the delegates met in the state capital, Hot-fud. (See what I did there?)
Oliver Ellsworth was among those advocating ratification.
On Jan. 4, 1788, Ellsworth examined the antecedents of the American federation. If interested in an early republic understanding of the ancient republics, I recommend this speech in its entirety.

A more energetic system [Ed. "...than the Articles of Confederation"] is necessary. The present is merely advisory. It has no coercive power. Without this, government is ineffectual, or rather is no government at all. He then examined the seventeen provinces of the Netherlands were once confederated, the Amphictyonic council, the Achæan league, the Ætolian league … the Germanic body. The confederation of the Swiss cantons. The Dutch republic is an example that merits attention.

Our being tributaries to our sister states is in consequence of the want of a federal system. The state of New York raises 60 or £80,000 a year by impost. Connecticut consumes about one third of the goods upon which this impost is laid, and consequently pays one third of this sum to New York. If we import by the medium of Massachusetts, she has an impost, and to her we pay a tribute. If this is done when we have the shadow of a national government, what shall we not suffer when even that shadow is gone! [Ed. If the states declined the Constitution, they might all end up independent of each other and would thus have the power to really injure each other. This situation, New York City taking advantage of its trade to the detriment of her sister states, was what the Founders thought of when they wrote about the power to "regulate the value of interstate commerce." More on this later.]

Ellsworth will continue tomorrow.

 

[Bamaro]

Yes, I noticed that and corrected the typo.
Imagine a legislative body with 2068 members. Might be unwieldy.

But much more representative.

 

[Tidewater]

January 7, 1788. [On this Power of Congress to lay Taxes.] Oliver Elsworth continued:
Another weighty reason in favor of this branch of the revenue [i.e. tariffs] is, if we do not give it to Congress, the individual states will have it, It will give some states an opportunity of oppressing others [Ed. and this was the root of the interstate commerce clause: to prevent state A from injuring state B], and destroy all harmony between them. If we would have the states friendly in each other, let us take away this bone of contention, and place it, as [page 194] it ought in justice to be placed, in the hands of the general government. ... But, says the honorable objector, if Congress levies money, they must legislate I admit it. Two legislative powers, says he, cannot legislate in the same place. I ask, Why can they nor? It is not enough to say they cannot. I wish for some reason. I grant that both [Congress and the state legislature] cannot legislate upon the same object at the same time, and carry into effect laws which are contrary to each other. But the Constitution excludes every thing of this kind. Each legislature has its province; their limits may be distinguished. If they will run foul of each other, if they will be trying who has the hardest head, it cannot be helped. The road is broad enough; but if two men will jostle each other, the fault is not in the road.

 

[Bodhisattva]

Always appreciate the scholarship and context, TW. Thanks!

 

[dtgreg]

Ed.: I have intentionally not started with the Philadelphia Convention, since the product of that convention was a proposal. Anyone interested can refer to Madison's Notes.

Once the proposal was out, James Wilson, who had been a delegate to the federal convention and had also been elected to the Pennsylvania state convention, gave a speech at a public meeting on Oct. 6, 1787 in Philadelphia (Bernard Bailyn (ed.), The Debate on the Constitution, vol. 1, 63-69). Wilson is thus a bridge between the federal convention and the state convention.

Wilson said, "It will be proper ... to mark the leading discrimination between the State constitutions and the constitution of the United States. When the people established the powers of legislation under their separate (ed. "state") governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case (ed. in state constitutions) everything which is not reserved is given; but in the latter (ed. the proposed federal constitution) the reverse of the proposition prevails, and everything which is not given is reserved.
This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition – what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? (ed. the federal government had no authority to restrict freedom of the press, even before the ratification of the First Amendment, which had not even been proposed in October 1787.)

Ed. Wilson was an advocate of ratification, not an opponent of ratification. According to Wilson, in the states, any doubtful power was authorized unless forbidden by the state constitution. With the federal constitution, when a power was not expressly delegated, the power is absolutely forbidden. The conception of legitimate powers at the state level and the federal level were very different, be design.

Am I misunderstanding the 10th Amendment? Obv settled by Civil War of 1860-65, but?

 

[TDBama78]

Here is a good read about taxation, Cracking the Code by Pete Hendrickson, losthorizons.com

 

[Tidewater]

Am I misunderstanding the 10th Amendment? Obv settled by Civil War of 1860-65, but?

We'll get to that topic in due course. I'm trying to present the arguments on the Constitution, to the extent possible, in the order in which they occurred, letting the participants speak for themselves to the extent possible.

 

[Tidewater]

Elsworth concludes:

This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so. Still, however, if the United States and the individual states will quarrel; if they want to fight, they may do it, and no frame of government can possibly prevent it. It is sufficient for this Constitution, that, so far from laying them under a necessity of contending, it provides every reasonable check against it. But perhaps, at some time or other, there will be a contest; the states may rise against the general government. If this do take place, if all the states combine, if all oppose, the whole will not eat up the members, but the measure which is opposed to the sense of the people will prove abortive. … Hence we see how necessary for the Union is a coercive principle. No man pretends the contrary: we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the states one against the other. I am for coercion by law—that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent state, it would involve the good and bad, the innocent and guilty, in the same calamity.

But this legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union. All men will see the reasonableness, of this; they will acquiesce, and say, Let the guilty suffer.