Star InactiveStar InactiveStar InactiveStar InactiveStar Inactive
 

The compromise report of the grand committee on representation did not immediately allay excitement and ill-feeling. The large-state men strongly objected, and some of the small-state men were not altogether satisfied. Lansing and Yates now left the convention, giving up hope that its labors would be satisfactory to them, as it had taken upon itself to do more than revise the Confederation, and had gone ahead to establish a "consolidated government."

They thought that they had no right to take part in a proceeding that would result in depriving "the state government of its most essential rights of sovereignty." Hamilton had for some time been absent, and he did not return till the middle of August; and even then, in the absence of the majority of the delegates, was unable to cast the vote of the state.

Portions of the compromise were long discussed, and a peaceful settlement seemed for a time as distant as ever. Gouverneur Morris, who had returned a few days before, after a long absence from the convention, attacked the report and pleaded with the members to avoid narrowness and to accept broad and patriotic views. "He came here," he said, "as a Representative of America; he flattered himself he came here in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention. He wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. If he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular States." These were noble words and did honor to the man that spoke them. He saw with clear vision that the failure of the convention meant discredit to America, meant a distracted, perhaps a warring nation. "This country must be united," he exclaimed. "If persuasion does not unite it, the sword will. . . . State attachments and State importance have been the bane of this Country. We can not annihilate, but we may perhaps take out the teeth of the serpents." No sounder truth was spoken in the course of the convention's work.

The small-state men that were prating of sovereignty might well listen; the sovereignty of assumption, the sovereignty of legal fiction, could not hold out against the force of fact, and the controlling fact was that the country must be united. And yet these eloquent words had little effect. Bedford half apologized for his previous threats, but found some consolation for his own warmth in Morris's reference to the sword: "To hear such language without emotion, would be to renounce the feelings of a man and the duty of a Citizen."

Though the stalwart members of the national party still fought lustily for a union based on truth and not on fiction, there was a growing desire to reach agreement. Gerry, of Massachusetts, whose whole orbit it is difficult to trace, could now see no hope of proportional representation in both branches and was getting ready to yield. King protested strongly against his colleague's defection. The proposed government, he said, was to be "substantially and formally, a General and National Government over the people of America"; there would never be a case in which it would "act as a federal Government on the States and not on the individual Citizens." The rule of representation in both branches, therefore, should be the same. But Strong, of Massachusetts, was also wavering: "If no Accommodation takes place, the Union itself must soon be dissolved." The small-state men, on the other hand, were as determined as ever. On July 16, after the convention had been in session for nearly two months, the vote was cast in favor of equal representation in the second chamber. This time Massachusetts was divided, and North Carolina left the ranks of the large-state party. The vote stood five to four; one state was divided, and three were at that time without representation on the floor.

The large-state men were loath to give up the contest. The strongest among them had seen the impotency of Congress, where narrow jealousy and petty state politics had played so conspicuous a role. Some of them had objected for years to the real injustice of the equal representation that had been in vogue from the beginning; and in organizing a national government they had grounds for hoping that a plan agreeable neither to reason nor to justice would be abandoned. The next morning after the eventful vote a caucus of the large-state party was held before the convention assembled. Some of the small-state men were in attendance. Should the compromise be acquiesced in, or should the large-state party, relying on the justice of their cause, persist in their opposition and proceed by themselves to frame a constitution? No conclusion could be reached, and when the convention assembled most of the men were in their places and the work went on.

In this way, the great cause of disagreement was put aside. Much still remained to be done, requiring wisdom, patience, and thoughtful statesmanship; but from this time forward men could differ without losing their tempers. The small-state men ceased to interfere with the work of the convention. Bedford soon left, or, at least, ceased speaking in the convention. Paterson ere long disappeared from sight. Nothing more was heard of Brearley for over a month. Lansing and Yates had already gone home in disgust. The resolute Martin remained till near the end of the session and then went home to denounce the large-state party and their success in the establishment of a national government. Ellsworth, Sherman, and Dickinson, who had been all along not ill-disposed to a national government if the security of the states was assured, remained to be of much service in working out the details of the Constitution.

The large-state party was much cast down, but there was no real occasion; they had themselves seen that there was no reason for expecting actual diversity of interest between the big and the little states, and there was no real fear that the Senate would become another impotent Congress reproducing the imbecility of the Confederation. The time was not far distant when the citizens of the states themselves would be divided into political parties on national issues and forget in a measure the old-time state antagonisms. It was, moreover, moved in the convention, only a short time after this critical vote on the great compromise was taken, that the members of the second branch should vote per capita and not by states; and notwithstanding the objection from Martin that this meant a departure from the idea of representation of the states, the motion was carried. Long as the small-state men had fought for equal representation, the party desiring a continuance of the Confederation and not the establishment of a national government were beaten; those were successful who, not objecting to a national government, wished in one of its members a means of restraint to protect the states in case of attack. If anyone has the idea that the particularists believed they had succeeded in preventing the convention from forming a national government, he may well read Lansing and Yates's letter to the governor of New York, Luther Martin's "Genuine Information," the writings of Richard Henry Lee or of George Clinton. The friends of the convention's work, in their defense, felt compelled to insist on the idea that the Constitution provided for a system only partly national.

Before a decision was reached on the great compromise, a few fundamental ideas had been hammered out in debate. Little by little the principle had been made clear that in all the arrangements of the new order, the state, and the national governments should be kept free from interference. This thought had found vague expression in the early days but was brought out more clearly in later discussions. Those who knew the unwholesome rivalries of the Confederation had been taught that a government as such has its own pride and foibles, its own self-love; and that if the new government was to succeed, it must not depend on execution by state officials but be able to work its will without reference to the governments of the states, unaffected, indeed, by the presence of the states. In some measure this idea was involved in the proposition to establish a general government; but a general government could have been established on a different principle, its machinery in contact with the machinery of the states. Such confederacies have in our day been set up in Switzerland and Germany.

In working out this idea of separation, there came out clearly certain foundation principles, which were most remarkable and far-reaching, the essentials of a system of imperial government new to the world: the general government was to legislate for men and not for states; it was to rest directly on its own citizens; it was to legislate directly and immediately for them. Over each citizen, there were to be two governments. In a powerful speech, as early as June 25, Wilson explained the significance of the proposed system. He spoke of the "twofold relation in which the people would stand," first as citizens of the general government, and second as citizens of their particular states. "The General Government was meant for them in the first capacity: the State Governments in the second. Both Governments were derived from the people — both meant for the people — both therefore ought to be regulated on the same principles. The same train of ideas that belonged to the relation of the Citizens to their State Governments were applicable to their relation to the General Government and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of the State Governments. With respect to the province and object of the General Government, they should be considered as having no existence." Wilson put forth this argument in opposition to the notion of election of senators by state legislatures. It is true that that method of election was finally adopted; but in the scheme worked out by the convention, this was almost the only variation from the principle that he was advocating.

This new political idea, which Wilson thus clearly explained, did not involve the establishment of a national government which was to be superior to the state governments. There was evidently to be a distribution of political authority, and each government in its peculiar sphere was to exercise power, not one over the other, but directly and without mediation on its own citizens. Strange, perhaps, that these simple thoughts were so often to be forgotten, if indeed they were fully understood, by combative statesmen of the future. But stranger still was the clear vision, the power of sober thought, which enabled the leaders of the convention to learn so well the teaching of the eleven distracted years since America had declared her independence. For these principles of political activity were new in the world's history, and these men were engaged in solving a problem of imperial organization in the presence of which the statesmen of England had shown neither comprehension nor insight.

This notion of the relationship of government to the individual was so clearly worked out that the delegates began to see that if the principle were fully applied there was no need of the coercion of states. Each of the three plans presented had in one form or another proposed coercion of delinquent states. But the notion of using force against a state became more and more objectionable, and it was seen that there was no need of coercing states if individuals could be reached directly.

Soon after the convention adjourned, Madison, in writing to Jefferson, gave the reason for omitting from the Constitution a provision authorizing the central government to call forth the force of the Union against a delinquent state: it was omitted because a much more reasonable and efficacious plan was devised. "It was generally agreed," he wrote, "that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force, both obnoxious and dangerous, and, in general, a scene resembling much more a civil war than the administration of a regular Government. Hence was embraced the alternative of a Government which, instead of operating on the States, should operate without their intervention on the individuals composing them; and hence the change in the principle and proportion of representation." In other words, to coerce states is to make war — justifiable under an agreement between sovereign states, but out of place when a government is acting on its citizens. A government enforces the law. Of course, in the enforcement of the law, troops may be needed, and the Constitution, therefore, gave authority for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion.

Both the Virginia and the Pinckney plans proposed that the central authority should have the right to negative state laws, and, as we have already seen, this principle was at first adopted by the convention in committee of the whole. Many of the members felt that only by granting such a power to the central authority could there be any assurance that the states would do their duty and play their part in the new order. But this, like the right to coerce, was abandoned. The whole principle of the veto was contradictory to the theory, the underlying notion of the Constitution, as it took form and meaning in the minds of its makers; there could logically be no law — that is, no state act really legal — if it contravened the Constitution and if the Constitution itself be law. Sherman saw this most surely. "Such a power," he said, referring to the veto in the hands of the national authorities, "involves a wrong principle, to wit, that a law of a State contrary to the articles of the Union would if not negatived, be valid, and operative."

We have seen that the rejected New Jersey plan contained a provision concerning the binding effect of the laws of the Union. After the resolution for granting the right to veto had been voted down, Luther Martin brought forward the old proposition of the New Jersey plan, and it was unanimously adopted. On the basis of this proposition was built up the central clause of the Constitution, which was to enable the new system to work smoothly and without administrative friction, was to provide a restraint upon the states, to maintain the dignity of the central government, and to preserve a complicated and delicate political system by peaceful and judicial processes. In its finished form; as it stands in the Constitution, this clause reads: "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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

This clause may be called the central clause of the Constitution because without it the whole system would be unwieldy, if not impracticable. Draw out this particular bolt, and the machinery falls to pieces. In these words the Constitution is plainly made not merely a declaration, a manifesto, dependent for its life and usefulness on the passing will of statesmen or of people, but a fundamental law, enforceable like any other law in courts. For the first time in history, courts are called upon by the simple processes of administering justice, in cases where private right or personal injury is involved, to uphold the structure of the body politic and the principles of the Constitution. In this clause, moreover, the salient and characteristic fact of the whole American constitutional system was made manifest, the fact that, in accordance with the theory of organization, the people make the law, and all acts of legislation must be in conformity with this law. For the most telling word is not "supreme" but "law." And thus the men at Philadelphia were, in theory, completing the historical process that had been working out in English history since the meeting of the barons with John Lackland at Runnymede. The long effort to establish a government of law and not of men was reaching its logical conclusion in an effort to make the government itself dependent on fundamental law.

We should notice chiefly that this principle was of especial value in solving the perplexing problem of the time. If the states had voluntarily and with good humor lived up to their obligations under the old system, all might have gone well. But they would not. Under the Constitution, therefore, the new government was to act by its own laws on its own citizens; in addition, the states were to be placed in a distinctly legal relationship, and were to be bound to recognize their duties as legal duties; the Constitution was to be the law of the land, enforceable in state courts, to be applied by state judges, to be appealed to by state citizens asking their own judges for justice. The states were not to be ordered by the central government to erase acts from their statute books, or directed to do this or not to do that; they might pass illegal acts, but their own judges in the quiet of their own court-rooms, at the instance of private suitors asking for their rights, were to be called on to disregard all state acts contrary to the law of the land. Had the convention, instead of finding this admirable idea, bestowed on the central authority the right to veto laws, untold friction would have resulted; it is difficult to see how the Constitution could have lasted a decade.

The Constitution was to be binding as law on state officers and to be applied by state judges; it was likewise, of course, to bind the central government in all of its branches. If the national government overstepped its authority, it also should be restrained by the courts, by the refusal of judges to recognize invalid enactments or illegal official action. Concerning the advisability of establishing a federal judiciary there was from the beginning of the convention's work a general agreement, but as to the structure and functions of the department, there was much difference of opinion. Provision for the system at length reached satisfactory form; a separate and distinct department of government, one supreme court and such inferior courts as Congress might establish, the judges to hold office during good behavior, the court to have a wide jurisdiction.

Here again, we must especially remark on the power, the duty, of the federal courts to recognize the Constitution as law, and thus with the state courts to preserve the Constitution, to maintain the distribution of power between state and nation, and to enforce its obligations. With regard to state courts, the Constitution contented itself with saying that the Constitution as the law was to be binding on state judges; in prescribing the jurisdiction of the federal courts there was in addition the statement that they were to have cognizance of cases "arising under this Constitution." Possibly the framers did not consciously intend by these words expressly to declare that the federal courts would have the right in all cases to declare a law of Congress void because of exceeding Constitutional limits. As to that, it is hard to speak with absolute assurance. Certainly, the Constitution was by this clause recognized and proclaimed as law, and we may at least assert that by force of logic, if not because of the full conscious purpose of the members of the convention, this power was bestowed — the power to declare of no effect an act of Congress contrary to the law of the land.

The delegates at Philadelphia must have known that the new state constitutions were regarded as law by the state courts. When the Federal Convention assembled, the nature of a written constitution, emanating from an authority outside the government, had already been made manifest by several judicial decisions. In New Jersey, as early as 1780, the court refused, in the case of Holmes vs. Walton, to regard as valid an unconstitutional act of the legislature. Two years later a similar doctrine was laid down in Virginia, and in 1786, as we have already seen, the Rhode Island court announced the same principle. Just as the convention was assembling at Philadelphia, the superior court of North Carolina distinctly asserted that the legislature could not bypassing any act "repeal or alter the constitution, because if they could do this, they would at the same instant of time, destroy their own existence as a legislature, and dissolve the government thereby established."

The preservation of the Constitution, the maintenance of the authority, laws, and treaties of the national government, was of the deepest importance to the delegates at Philadelphia; but they did not establish a special tribunal, as a body of censors, or a special court to declare state or national acts void. All that was necessary was to see that the Constitution was made law and had the qualities of a fundamental law. It would then be the duty, not of the supreme court alone, but of all state and national courts, to recognize it as law and to apply it in controversies coming before them. This, then, was a great discovery, and not less great because it required no novel and unfamiliar machinery, no principle altogether new and strange. The courts, acting as courts have always acted in distributing justice to litigants, were to declare the law and decide cases accordingly, by the well-known methods of English and American jurisprudence; they were simply expected in all controversies to apply when need be, the Constitution as the supreme law of the land.