The Constitution of the United States / A Brief Study of the Genesis, Formulation and Political Philosophy of the Constitution

by James M. Beck

It is evident that if the framers of the Constitution had met, as similar conventions have within recent years met at Versailles and Genoa, with the world as their gallery and with the representatives of the Press as an integral part of the conference, they would have accomplished nothing. The probability is that the convention would not have lasted a month if their immediate purpose had been to placate current opinion. It may be doubted whether such a convention, if called to-day, either in your country or mine, could achieve like results, for in this day of unlimited publicity, when men divide not as individuals but in powerful and organized groups, a constitutional convention would, I fear, prove a witches' cauldron of class legislation and demagoguery. Is it not possible that modern democracy is in danger of strangulation by its present-day methods and ideals? Again the words of Washington suggest themselves: "If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and just can repair."

Working with a sad sincerity and with despair in their hearts, this little band of men wrought a work of surpassing importance, and if they did not receive the immediate plaudits of the living generation, their shades can at least solace themselves with the reflection that posterity has acclaimed their work as one of the greatest political achievements of man.

The rules of order and the nature of the proceedings thus determined, the convention opened by an address by Mr. Randolph of Virginia, in which he submitted, in the form of fifteen points—nearly the number of the fatal fourteen—the outlines for a new government. He himself in his opening speech summarized the propositions by candidly confessing "that they were not intended for a federal government" (thereby meaning a mere league of States) but "a strong consolidated union." Upon this radical change the convention was to argue earnestly and at times bitterly for many a weary day. The plan provided for a national legislature of which the lower branch should be elected by the people and the upper branch by the lower branch upon the nomination of the legislatures of the States. This legislature should enjoy all the legislative rights given to the federation, and there followed the sweeping grant that it "could legislate in all cases to which the separate States are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation," with power "to negative all laws passed by the several States contravening in the opinion of the national legislature the Articles of the Union."

A national executive was proposed, together with a national judiciary, and these two bodies were given authority "to examine every act of the national legislature before it shall operate and every act of a particular legislature before a negative thereon shall be final." This marked an immense advance over the Articles of Confederation, under which there was no national executive or judiciary, and under which the legislature had no direct power over the citizens of the States, and could only impose duties upon the States themselves by the concurrence of nine of the thirteen.

Hardly had Mr. Randolph submitted the so-called Virginia plan when Charles Pinckney, of South Carolina, a young man of twenty-nine years of age, with the courage of youth submitted to the House a draft of the future federal government. Curiously enough, it did not differ in principle from the Virginia plan, but was more specific and concrete in stating the powers which the federal government should exercise, and many of its provisions were embodied in the final draft. Indeed, Pinckney's plan was the future Constitution of the United States in embryo; and when it is read and contrasted with the document which has so justly won the acclaim of men throughout the world, it is amazing that so young a man should have anticipated and reduced to a concrete and effective form many of the most novel features of the Federal Government. As the only copy of Pinckney's plan was furnished years afterwards to Madison for his journal, it is possible that some of its wisdom was of the post factum variety.

Having received the two plans, the convention then went, on May 30, into a committee of the whole to consider the fifteen propositions in the Virginia plan seriatim. They wisely concluded to determine abstract ideas first and concrete forms later. Apparently for the time being little attention was paid to Pinckney's plan, and this may have been due to the hostile attitude of the older members of the convention to the presumption of his youth.

Then ensued a very remarkable debate on the immediate propositions and the principles of government which underlay them, which lasted for two weeks. On June 13 the committee rose. Even the fragments of this debate, which may well have been one of the most notable in history, indicate the care with which the members had studied governments of ancient and modern times. There were many points of difference, but chief of them, which nearly resulted in the collapse of the convention, was the inevitable difficulty which always arises in the formation of a league of States or an association of nations between the great and the little States.

The five larger States had a population that was nearly twice as great as the remaining eight States. Thus Virginia's population was nearly ten-fold as great as Georgia. Moreover, the States differed greatly in their material wealth and power. Nevertheless, all of them entered the convention as independent sovereign nations, and the smaller nations contended that the equality in suffrage and political power which prevailed in the convention (in which each State, large or small, voted as a unit), should and must be preserved in the future government. To this the larger States were quite unwilling to yield, and when the committee rose they reported, in substance, the Virginia plan, with the proviso that representation in the proposed double-chambered Congress should be "according to some equitable ratio of representation."

On June 15 the small States presented their draft, which was afterwards known as the New Jersey plan, because it was introduced by Mr. Patterson of that State. It only contemplated an amendment to the existing Constitution and an amplification of the powers of the impotent Confederation. Its chief advance over the existing government was that it provided for a federal executive and a federal judiciary, but otherwise the government remained a mere league of States, in which the central government could generally act only by the vote of nine States, and in which their power was exhausted when they requested the States to enforce the decrees. Its chief advance over the Articles of Confederation, in addition to the creation of an executive, was an assertion that the acts of Congress "shall be the supreme law of the respective States … and that the judiciary of the several States shall be bound thereby in their decisions," and that "if any State or any body of men in any State shall oppose or prevent the carrying into execution of such acts or treaties the federal executive shall be authorized to call forth the power of the confederated States … to enforce and compel obedience to such acts or an observance of such treaties."

While this was some advance toward a truly national government, it yet left the national executive dependent upon the constituent States, for if they failed to respond to the call above stated the national government had no direct power over their citizens.