A Senate of the States: July 27th – August 6th, 1787

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The convention adjourned July 26th to offer time for a Committee of Detail to smooth the resolutions passed to date. In addition to its assigned duty, it occasionally added what it regarded as necessary clauses in the Constitution, such as the duty of the senate to resolve disputes between states. Delegates will reconvene on August 6th.

The lack of public news from the convention was infuriating. During this recess, a member of the North Carolina delegation apologized to his governor; his oath of secrecy forbade discussion of the proceedings. James Madison’s father tried his utmost, with no success, to pry something from his son. This was the most important rule of the convention. It freed delegates from outside pressure and allowed them to change their minds. Contrast these men of honor to those who occupy the highest reaches of our government today. Imagine the anonymous leaks to the press for the purpose of wrecking the convention.

Experienced constitution writers and legal theorists sat in the Committee of Detail. There were two northerners, Nathaniel Gorham and Judge Oliver Ellsworth, two southerners in Governor Edmund Randolph, former Governor John Rutlidge, and a Middle Statesman in the Scots-born James Wilson. All were of the nationalist bent; no small state advocates like Luther Martin or William Paterson were there.

While little is known of the proceedings of the committee, we know it had help from copies of the Articles of Confederation, state constitutions, the Paterson and Pinckney Plans, and other documents with which they were familiar. Its draft Constitution will pique the interest of every patriot. Of particular interest to this series is the evolution of senatorial duties, which reflect the committee’s perspective of the senate’s place in our compound republic.

The ages-old concept of legislatures, especially upper houses, as quasi-judicial bodies remained strong in 1787. It is evident in the Ninth Article of the draft Constitution, which placed the responsibility for settling disputes between states with the senate. This strikes me today as thoroughly logical and makes me wonder, had it remained in the Constitution, how it would have affected modern Article III jurisprudence?

Article IX

Sect 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.

Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful agent of any State, in controversy with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination.

(cont.) If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or defend their claim or cause, the Court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every Commissioner shall, before he sits in judgment, take an oath, to be administered by one of the Judges of the Supreme or Superior Court of the State where the cause shall be tried, “well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward.

Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States.

This procedure, while outwardly cumbersome, was nearly word-for-word identical to Article IX of the Confederation. It afforded settlement of state-to-state controversies without resort to armed conflict. Instead of politicizing the supreme court, such matters are perhaps best settled among members appointed by a political body, a real jury of peers. Woe to the state which stood alone in defiance of its fellow-states!

For instance, in 1990, Alabama and Florida filed suit against the US Corps of Engineers over allocation of water from the Flint/Chattahoochee/Tallapoosa/Apalachicola river systems. The Corps, accused the suit, diverted too much water to fast-growing Atlanta, which left too little for downstream fisheries and oyster industries. After bouncing around the courts and Corps of Engineers, the supreme court assigned it to a Grand Master for resolution. Some twenty-seven year later, it remains an open matter!

Rather than endure an ad hoc approach, this dispute strikes me as the sort best decided through representatives of the states in the United States senate. It is the equivalent of a tort between the corporate states, each of which attempts to look out for the best interests of their people. The Framers’ sought a ‘high toned’, semi-aristocratic senate. Settling this and similar disputes between states would have strengthened the federal nature of our compound republic. While I would not want this authority in the post-17th Amendment senate, it remains a shame that it did not make the final cut in our beloved Constitution.

George Washington reconvened the convention on August 6th. Each delegate scanned his copy as John Rutlidge read the draft Constitution aloud.

This first draft, an amended version of the Virginia Plan, was remarkably close to the finished Constitution. Twelve hundred words of somewhat disconnected clauses were sewn together into a semi-smooth fabric of thirty-seven hundred words. But that was not all, for the committee introduced some novel terms and clauses of its own. It was first to use the title, President of the United States, We the People, State of the Union, Privileges and Immunities, and Necessary and Proper.

They provided for the internal organization of both house of congress, worked out the exact procedures of the qualified veto, defined the jurisdiction of the courts, adjusted certain relations among the states, and armed the president with power of guidance of the legislature, appointment of his own aides, administration, command, ceremony, and mercy. In some places it decided to make up the mind of the convention; it placed the power to impeach in the house and to convict in the supreme court.1

The committee devised language over new states, the ratio of house representation at 1:40,000, and the supremacy clause over state laws and constitutions. It determined the suffrage of the people to elect house members as that of the most numerous branch of their own state legislatures. Brilliant!

Previously, the question of how to demark the line between national and state powers had flummoxed the convention In response, the committee enumerated powers and duties both granted and denied to the states and the new government. The importance of their approach cannot be overstated. On their own, in view of the convention’s refusal to approve the negative over state laws on July 17th, the committee listed some prohibitions on state power. This, along with judicial review and the supremacy clause would keep a lid on state Laws contravening the Constitution.

General Reference: Madison, J. (1966). Notes of Debates in the Federal Convention of 1787. Chicago: Ohio University Press.
1. Rossiter, C. (1966). 1787 The Grand Convention. New York: W W Norton & Company.