Historical Note on Formation of the Constitution

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                             HISTORICAL NOTE

        In June 1774, the Virginia and Massachusetts assemblies
independently proposed an intercolonial meeting of delegates from the
several colonies to restore union and harmony between Great Britain and
her American Colonies. Pursuant to these calls there met in Philadelphia
in September of that year the first Continental Congress, composed of
delegates from 12 colonies. On October 14, 1774, the assembly adopted
what has become to be known as the Declaration and Resolves of the First
Continental Congress. In that instrument, addressed to his Majesty and
to the people of Great Britain, there was embodied a statement of rights
and principles, many of which were later to be incorporated in the
Declaration of Independence and the Federal Constitution.\1\
        \1\The colonists, for example, claimed the right ``to life,
liberty, and property'', ``the rights, liberties, and immunities of free
and natural-born subjects within the realm of England''; the right to
participate in legislative councils; ``the great and inestimable
privilege of being tried by their peers of the vicinage, according to
the course of [the common law of England]''; ``the immunities and
privileges granted and confirmed to them by royal charters, or secured
by their several codes of provincial laws''; ``a right peaceably to
assemble, consider of their grievances, and petition the king.'' They
further declared that the keeping of a standing army in the colonies in
time of peace without the consent of the colony in which the army was
kept was ``against law''; that it was ``indispensably necessary to good
government, and rendered essential by the English constitution, that the
constituent branches of the legislature be independent of each other'';
that certain acts of Parliament in contravention of the foregoing
principles were ``infringement and violations of the rights of the
colonists.'' Text in C. Tansill (ed.), Documents Illustrative of the
Formation of the Union of the American States, H. Doc. No. 358, 69th
Congress, 1st sess. (1927), 1. See also H. Commager (ed.), Documents of
American History (New York; 8th ed. 1964), 82.
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        This Congress adjourned in October with a recommendation that
another Congress be held in Philadelphia the following May. Before its
successor met, the battle of Lexington had been fought. In Massachusetts
the colonists had organized their own government in defiance of the
royal governor and the Crown. Hence, by general necessity and by common
consent, the second Continental Congress assumed control of the ``Twelve
United Colonies'', soon to become the ``Thirteen United Colonies'' by
the cooperation of Georgia. It became a de facto government; it called
upon the other colonies to assist in the defense of Massachusetts; it
issued bills of credit; it took steps to organize a military force, and
appointed George Washington commander in chief of the Army.
        While the declaration of the causes and necessities of taking up
arms of July 6, 1775,\2\ expressed a ``wish'' to see the union between
Great Britain and the colonies ``restored'', sentiment for independence
was growing. Finally, on May 15, 1776, Virginia instructed her delegates
to the Continental Congress to have that body ``declare the united
colonies free and independ

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ent States.''\3\ Accordingly on June 7 a resolution was introduced in
Congress declaring the union with Great Britain dissolved, proposing the
formation of foreign alliances, and suggesting the drafting of a plan of
confederation to be submitted to the respective colonies.\4\ Some
delegates argued for confederation first and declaration afterwards.
This counsel did not prevail. Independence was declared on July 4, 1776;
the preparation of a plan of confederation was postponed. It was not
until November 17, 1777, that the Congress was able to agree on a form
of government which stood some chance of being approved by the separate
States. The Articles of Confederation were then submitted to the several
States, and on July 9, 1778, were finally approved by a sufficient
number to become operative.
        \2\Text in Tansill, op. cit., 10.
        \3\Id., 19.
        \4\Id., 21.
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        Weaknesses inherent in the Articles of Confederation became
apparent before the Revolution out of which that instrument was born had
been concluded. Even before the thirteenth State (Maryland)
conditionally joined the ``firm league of friendship'' on March 1, 1781,
the need for a revenue amendment was widely conceded. Congress under the
Articles lacked authority to levy taxes. She could only request the
States to contribute their fair share to the common treasury, but the
requested amounts were not forthcoming. To remedy this defect, Congress
applied to the States for power to lay duties and secure the public
debts. Twelve States agreed to such an amendment, but Rhode Island
refused her consent, thereby defeating the proposal.
        Thus was emphasized a second weakness in the Articles of
Confederation, namely, the liberum veto which each State possessed
whenever amendments to that instrument were proposed. Not only did all
amendments have to be ratified by each of the 13 States, but all
important legislation needed the approval of 9 States. With several
delegations often absent, one or two States were able to defeat
legislative proposals of major importance.
        Other imperfections in the Articles of Confederation also proved
embarrassing. Congress could, for example, negotiate treaties with
foreign powers, but all treaties had to be ratified by the several
States. Even when a treaty was approved, Congress lacked authority to
secure obedience to its stipulations. Congress could not act directly
upon the States or upon individuals. Under such circumstances foreign
nations doubted the value of a treaty with the new Republic.
        Furthermore, Congress had no authority to regulate foreign or
interstate commerce. Legislation in this field, subject to unimportant
exceptions, was left to the individual States. Disputes between States
with common interests in the navigation of certain rivers and bays were
inevitable. Discriminatory regulations were followed by reprisals.
        Virginia, recognizing the need for an agreement with Maryland
respecting the navigation and jurisdiction of the Potomac River,
appointed in June

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1784, four commissioners to ``frame such liberal and equitable
regulations concerning the said river as may be mutually advantageous to
the two States.'' Maryland in January 1785 responded to the Virginia
resolution by appointing a like number of commissioners\5\ ``for the
purpose of settling the navigation and jurisdiction over that part of
the bay of Chesapeake which lies within the limits of Virginia, and over
the rivers Potomac and Pocomoke'' with full power on behalf of Maryland
``to adjudge and settle the jurisdiction to be exercised by the said
State, respectively, over the waters and navigations of the same.''
        \5\George Mason, Edmund Randolph, James Madison, and Alexander
Henderson were appointed commissioners for Virginia; Thomas Johnson,
Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for
Maryland.
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        At the invitation of Washington the commissioners met at Mount
Vernon, in March 1785, and drafted a compact which, in many of its
details relative to the navigation and jurisdiction of the Potomac, is
still in force.\6\ What is more important, the commissioners submitted
to their respective States a report in favor of a convention of all the
States ``to take into consideration the trade and commerce'' of the
Confederation. Virginia, in January 1786, advocated such a convention,
authorizing its commissioners to meet with those of other States, at a
time and place to be agreed on, ``to take into consideration the trade
of the United States; to examine the relative situations and trade of
the said State; to consider how far a uniform system in their commercial
regulations may be necessary to their common interest and their
permanent harmony; and to report to the several State, such an act
relative to this great object, as when unanimously ratified by them,
will enable the United States in Congress, effectually to provide for
the same.''\7\
        \6\Text of the resolution and details of the compact may be
found in Wheaton v. Wise, 153 U.S. 155 (1894).
        \7\Transill, op. cit., 38.
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        This proposal for a general trade convention seemingly met with
general approval; nine States appointed commissioners. Under the
leadership of the Virginia delegation, which included Randolph and
Madison, Annapolis was accepted as the place and the first Monday in
September 1786 as the time for the convention. The attendance at
Annapolis proved disappointing. Only five States--Virginia,
Pennsylvania, Delaware, New Jersey, and New York--were represented;
delegates from Massachusetts, New Hampshire, North Carolina, and Rhode
Island failed to attend. Because of the small representation, the
Annapolis convention did not deem ``it advisable to proceed on the
business of their mission.'' After an exchange of views, the Annapolis
delegates unanimously submitted to their respective States a report in
which they suggested that a convention of representatives from all the
States meet at Philadelphia on the second Monday in May 1787 to examine
the defects in the existing system of government and formulate ``a plan
for supplying such defects as may be discovered.''\8\The Virginia
legislature acted promptly upon this recommendation and appointed a
delegation to go

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to Philadelphia. Within a few weeks New Jersey, Pennsylvania, North
Carolina, Delaware, and Georgia also made appointments. New York and
several other States hesitated on the ground that, without the consent
of the Continental Congress, the work of the convention would be extra-
legal; that Congress alone could propose amendments to the Articles of
Confederation. Washington was quite unwilling to attend an irregular
convention. Congressional approval of the proposed convention became,
therefore, highly important. After some hesitancy Congress approved the
suggestion for a convention at Philadelphia ``for the sole and express
purpose of revising the Articles of Confederation and reporting to
Congress and the several legislatures such alterations and provisions
therein as shall when agreed to in Congress and confirmed by the States
render the Federal Constitution adequate to the exigencies of Government
and the preservation of the Union.''
        \8\Id., 39.
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        Thereupon, the remaining States, Rhode Island alone excepted,
appointed in due course delegates to the Convention, and Washington
accepted membership on the Virginia delegation.
        Although scheduled to convene on May 14, 1787, it was not until
May 25 that enough delegates were present to proceed with the
organization of the Convention. Washington was elected as presiding
officer. It was agreed that the sessions were to be strictly secret.
        On May 29 Randolph, on behalf of the Virginia delegation,
submitted to the convention 15 propositions as a plan of government.
Despite the fact that the delegates were limited by their instructions
to a revision of the Articles, Virginia had really recommended a new
instrument of government. For example, provision was made in the
Virginia plan for the separation of the three branches of government;
under the Articles executive, legislative, and judicial powers were
vested in the Congress. Furthermore the legislature was to consist of
two houses rather than one.
        On May 30 the Convention went into a committee of the whole to
consider the 15 propositions of the Virginia plan seriatim . These
discussion continued until June 13, when the Virginia resolutions in
amended form were reported out of committee. They provided for
proportional representation in both houses. The small States were
dissatisfied. Therefore, on June 14 when the Convention was ready to
consider the report on the Virginia plan, Paterson of New Jersey
requested an adjournment to allow certain delegations more time to
prepare a substitute plan. The request was granted, and on the next day
Paterson submitted nine resolutions embodying important changes in the
Articles of Confederation, but strictly amendatory in nature. Vigorous
debate followed. On June 19 the States rejected the New Jersey plan and
voted to proceed with a discussion of the Virginia plan. The small
States became more and more discontented; there were threats of
withdrawal. On July 2, the Convention was deadlocked over giving each

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State an equal vote in the upper house--five States in the affirmative,
five in the negative, one divided.\9\
        \9\The New Hampshire delegation did not arrive until July 23,
1787.
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        The problem was referred to a committee of 11, there being 1
delegate from each State, to effect a compromise. On July 5 the
committee submitted its report, which became the basis for the ``great
compromise'' of the Convention. It was recommended that in the upper
house each State should have an equal vote, that in the lower branch
each State should have one representative for every 40,000 inhabitants,
counting three-fifths of the slaves, that money bills should originate
in the lower house (not subject to amendment by the upper chamber). When
on July 12 the motion of Gouverneur Morris of Pennsylvania that direct
taxation should also be in proportion to representation was adopted, a
crisis had been successfully surmounted. A compromise spirit began to
prevail. The small States were not willing to support a strong national
government.
        Debates on the Virginia resolutions continued. The 15 original
resolutions had been expanded into 23. Since these resolutions were
largely declarations of principles, on July 24 a committee of five\10\
was elected to draft a detailed constitution embodying the fundamental
principles which had thus far been approved. The Convention adjourned
from July 26 to August 6 to await the report of its committee of detail.
This committee, in preparing its draft of a Constitution, turned for
assistance to the State constitutions, to the Articles of Confederation,
to the various plans which had been submitted to the Convention and
other available material. On the whole the report of the committee
conformed to the resolutions adopted by the Convention, though on many
clauses the members of the committee left the imprint of their
individual and collective judgments. In a few instances the committee
avowedly exercised considerable discretion.
        \10\Rutledge of South Carolina, Randolph of Virginia, Gorham of
Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania.
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        From August 6 to September 10 the report of the committee of
detail was discussed, section by section, clause by clause. Details were
attended to, further compromises were effected. Toward the close of
these discussions, on September 8, another committee of five\11\ was
appointed ``to revise the style of and arrange the articles which had
been agreed to by the house.''
        \11\William Samuel Johnson of Connecticut, Alexander Hamilton of
New York, Gouverneur Morris of Pennsylvania, James Madison of Virginia,
and Rufus King of Massachusetts.
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        On Wednesday, September 12, the report of the committee of style
was ordered printed for the convenience of the delegates. The Convention
for 3 days compared this report with the proceedings of the Convention.
The Constitution was ordered engrossed on Saturday, September 15.
        The Convention met on Monday, September 17, for its final
session. Several of the delegates were disappointed in the result. A few
deemed the new Constitution a mere makeshift, a series of unfortunate
compromises. The advocates of the Constitution, realizing the impending
difficulty of

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obtaining the consent of the States to the new instrument of Government,
were anxious to obtain the unanimous support of the delegations from
each State. It was feared that many of the delegates would refuse to
give their individual assent to the Constitution. Therefore, in order
that the action of the Convention would appear to be unanimous,
Gouverneur Morris devised the formula ``Done in Convention, by the
unanimous consent of the States present the 17th of September...In
witness whereof we have hereunto subscribed our names.'' Thirty-nine of
the forty-two delegates present thereupon ``subscribed'' to the
document.\12\
        \12\At least 65 persons had received appointments as delegates
to the Convention; 55 actually attended at different times during the
course of the proceedings; 39 signed the document. It has been estimated
that generally fewer than 30 delegates attended the daily sessions.
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        The convention had been called to revise the Articles of
Confederation. Instead, it reported to the Continental Congress a new
Constitution. Furthermore, while the Articles specified that no
amendments should be effective until approved by the legislatures of all
the States, the Philadelphia Convention suggested that the new
Constitution should supplant the Articles of Confederation when ratified
by conventions in nine States. For these reasons, it was feared that the
new Constitution might arouse opposition in Congress.
        Three members of the Convention--Madison, Gorham, and King--were
also Members of Congress. They proceeded at once to New York, where
Congress was in session, to placate the expected opposition. Aware of
their vanishing authority, Congress on September 28, after some debate,
decided to submit the Constitution to the States for action. It made no
recommendation for or against adoption.
        Two parties soon developed, one in opposition and one in support
of the Constitution, and the Constitution was debated, criticized, and
expounded clause by clause. Hamilton, Madison, and Jay wrote a series of
commentaries, now known as the Federalist Papers, in support of the new
instrument of government.\13\ The closeness and bitterness of the
struggle over ratification and the conferring of additional powers on
the central government can scarcely be exaggerated. In some States
ratification was effected only after a bitter struggle in the State
convention itself.
        \13\These commentaries on the Constitution, written during the
struggle for ratification, have been frequently cited by the Supreme
Court as an authoritative contemporary interpretation of the meaning of
its provisions.
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        Delaware, on December 7, 1787, became the first State to ratify
the new Constitution, the vote being unanimous. Pennsylvania ratified on
December 12, 1787, by a vote of 46 to 23, a vote scarcely indicative of
the struggle which had taken place in that State. New Jersey ratified on
December 19, 1787, and Georgia on January 2, 1788, the vote in both
States being unanimous. Connecticut ratified on January 9, 1788; yeas
128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of
19 votes in a convention with a membership of 355, endorsed the new
Constitution, but rec

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ommended that a bill of rights be added to protect the States from
federal encroachment on individual liberties. Maryland ratified on April
28, 1788; yeas 63, nays 11. South Carolina ratified on May 23, 1788;
yeas 149, nays 73. On June 21, 1788, by a vote of 57 to 46, New
Hampshire became the ninth State to ratify, but like Massachusetts she
suggested a bill of rights.
        By the terms of the Constitution nine States were sufficient for
its establishment among the States so ratifying. The advocates of the
new Constitution realized, however, that the new Government could not
succeed without the addition of New York and Virginia, neither of which
had ratified. Madison, Marshall, and Randolph led the struggle for
ratification in Virginia. On June 25, 1788, by a narrow margin of 10
votes in a convention of 168 members, that State ratified over the
objection of such delegates as George Mason and Patrick Henry. In New
York an attempt to attach conditions to ratification almost succeeded.
But on July 26, 1788, New York ratified, with a recommendation that a
bill of rights be appended. The vote was close--yeas 30, nays 27.
        Eleven States having thus ratified the Constitution,\14\ the
Continental Congress--which still functioned at irregular intervals--
passed a resolution on September 13, 1788, to put the new Constitution
into operation. The first Wednesday of January 1789 was fixed as the day
for choosing presidential electors, the first Wednesday of February for
the meeting of electors, and the first Wednesday of March (i.e. March 4,
1789) for the opening session of the new Congress. Owing to various
delays, Congress was late in assembling, and it was not until April 30,
1789, that George Washington was inaugurated as the first President of
the United States.
        \14\North Carolina added her ratification on November 21, 1789;
yeas 184, nays 77. Rhode Island did not ratify until May 29, 1790; yeas
34, nays 32.