The Constitution and the Confederation Congress

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Subtitle: When to Amend?

Congress, that poor substitute for an actual government, was on the verge of collapse in 1787. Not a single state complied with the tax requisition of 1786. When the Federal Convention in Philadelphia adjourned on September 17th, the prospects of adequate tax collections for 1787 were equally dim. James Madison wrote, “The Treasury Board seems to be in despair of maintaining the shadow of government much longer. Without money, the offices must be shut up, and the handful of troops on the frontier disbanded.” Nothing but the hope of better things inspired by the convention did in fact keep them from packing their saddle-bags and silently steal away to their homes.

This was the atmosphere in which a hot potato, the draft Constitution, fell in the lap of Congress on September 20th. Congress was in session when the convention adjourned, and when ten Congressmen who attended the convention returned to Congress sitting in New York City, eleven states were represented. Supporters pressed for fast endorsement and transmittal, but others resolved instead to delay and take up the Constitution for debate on September 26th.

The convention’s letter to Congress which accompanied the Constitution opened with, “Resolved, that the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this Convention that it should afterwards be submitted to a Convention of delegates, chosen in each state by the people thereof, . . . for their assent and ratification.”

While this request appears innocuous today, many felt insulted by the “take it or leave it” nature of the letter. No one, including delegates to the convention regarded the Constitution as perfect, as being without faults, so why not amend a defective document before implementation?

Congress had several options. It could:

• Do nothing. Congress could register its displeasure by not forwarding the Constitution to the states.
• Send the Constitution, without comment, to the states.
• Send the Constitution with recommended amendments.

Anti-Federalists Richard Henry Lee of Virginia and Melancton Smith of New York were not pleased that the convention went beyond Congress’ February 21st, 1787 call for a convention whose “sole and express purpose” was to revise the Articles of Confederation. They noted that the thirteenth Article of the Confederation limited Congress’ participation to amending the existing confederation of thirteen states, and did not extend to a new confederacy of nine states. But, out of respect to the convention they proposed Congress forward the Constitution to the several state governors without recommending state ratifying conventions. In other words, not only should no government be expected to vote for its demise, but Lee and Smith would, if they could, bury the Constitution at the nearest cemetery.

James Madison disagreed. He recognized that any resolution that did not explicitly express support implied disapproval. Madison recommended no screwing around; Congress should take a stand and recommend ratification. South Carolina’s Pierce Butler, also a delegate to the convention, agreed: “The state of the country is contemptible abroad,” and there would be anarchy at home unless the Constitution was adopted.

But how could Congress endorse or reject without a clause-by-clause examination? Connecticut’s William Samuel Johnson novel idea was that the convention was a committee of Congress and Congress should simply approve or disapprove the report of the convention as it would do with any other committee report.

In another twist, Edward Carrington of Virginia proposed Congress recommend the states call conventions “as speedily as may be,” so that it may be “adopted, ratified, and confirmed.” Even fellow Virginian Henry Lee (related to Richard Henry Lee), a supporter of the constitution, couldn’t handle this. Congress would disgrace itself if it endorsed the constitution without careful examination and recommending amendments.

Like Richard Henry Lee, Nathan Dane of Massachusetts did not attend the Philadelphia convention; both were unaware of attempts to keep the entirely federal form of the Articles of Confederation when they charged the convention with violating the stipulation from Congress to revise the Articles and not create an entirely new form.1 Nonetheless, both men changed their minds and recommended that Congress forward the Constitution to the state legislatures for subsequent submission to ratifying conventions of the people’s delegates.

Convention attendees Madison, Rufus King and William Samuel Johnson suggested the convention was like the second house in a bicameral legislature. Congress, sitting as the other house, could only vote it up or down. This was, of course, a stretch, since the convention was a temporary body that had adjourned for good.

In the unlikely event Congress could agree on a set of amendments, Madison pleaded with his colleagues to consider the fatal effect of sending the Constitution plus amendments to the states. There would be two plans for the states to consider. One to be sourced from the federal convention and one sourced from Congress. The convention’s Constitution needed only nine states to ratify, while the congressionally amended Constitution needed all thirteen states. Some states would accept one and some the other, causing confusion. Both Constitutions were certain to fall if Congress proposed an amended version.

King also reasoned that since the convention originated in the states (not Congress), Congress “cannot constitutionally make alterations.” He suggested any amendments must come from the people or state ratifying conventions.

Despite the logic of Madison and King, Richard Henry Lee thought it silly and dangerous not to consider amendments. To not do so assumed “all wisdom centers in the convention” and nowhere else. From the nature of government, he wrote that a Bill of Rights was needed to protect the just rights and liberty of mankind from “the silent, powerful, and ever active conspiracy of those who govern.” Lee’s objections to the Constitution were gathered into a series of newspaper articles under the title, Letters of the Federal Farmer. Along with other Anti-Federalists, Lee pressed hard for a Bill of Rights which found its way into our Constitution.

But Lee soon went too far, which diminished his appeal for a Bill of Rights. Among his additional proposed amendments was a privy council of eleven members chosen by the President to advise and assist him in appointments, some changes to the Supreme Court’s jurisdiction, get rid of the vice president, enlarge the House, and make Senatorial representation proportional to population.2

Friday September 28th. Congress approved a rewritten version of Clark’s earlier resolution. It acknowledged receipt of the Constitution, and “resolved unanimously” to transmit the Constitution and accompanying documents to the state legislatures for submission to popularly elected conventions for ratification. Yes, the odd wording, “resolved unanimously” was intended to imply to the casual reader that Congress endorsed the Constitution. In a letter to James Madison, George Washington wrote, “Not everyone has opportunities to peep behind the curtain.”

Federalists did what they could to keep the public from looking behind the curtain. Not only were the proceedings of the federal convention secret, but so were Congress’ official records of September 26-28. All the official record showed were the states in attendance and Congress’ decision to forward the Constitution to the states.

One big question remained unanswered. “Is it the idea of the (federal) convention,” Richard Henry Lee had asked on September 27th, “that not only Congress but the states must agree in the whole, or else to reject it?” Rufus King and William Samuel Johnson weren’t sure, but thought the people in state conventions were a proper source of amendments.

Would that position take hold among the ratifying conventions, or would the Federalists insist the people do as Congress, and either accept or reject the Constitution as-is?

1. New Jersey Plan.

2. The Federal Convention considered and rejected a privy council as well as proportional representation in the senate. The sense of honor among congressmen who served as state delegates to the convention and kept their oaths of secrecy during congressional debates is remarkable. Compare our Framers’ sense of honor to members of our current congress.

Sources:

Burnett, E. C. (1941). The Continental Congress: A Definitive History of the Continental Congress from its Inception in 1774 to March, 1789. New York: W.W. Norton Company.

Maier, P. (2010). Ratification – The People Debate the Constitution. New York: Simon and Schuster, Inc.
Tags: Confederation Congress, Ratification, Richard Henry Lee, Rufus King, William Samuel Johnson, Amendments, Nathan Dane, Edward Carrington