John Rutlidge and Roger Sherman objected. A committee would further delay proceedings and it should be up to Congress anyway to make such a pronouncement if it thought proper. Mr. Carrol’s motion failed 6-4.
John Langdon (NH) wished to revisit apportionment of representatives and give one more each to RI and NC. (Hmm, why would a delegate from NH care? Did he fear a tough going for the Constitution at their upcoming ratifying conventions? Perhaps another representative each would help win them over.)
Roger Sherman (CN) also thought NC should have another representative.
Mr. Langdon’s motion to reconsider failed 8-2-1.
John Langdon then motioned to give RI and NC each another representative.
(It had been clear for a few days the delegates wished to go home.)
Rufus King opposed the change as just another delay. There was no evidence that NC deserved another and he would not sign the Constitution if RI was to have one quarter of the representatives of MA.
Charles Pinckney urged another rep for NC.
Gunning Bedford (DE) thought his State and RI should have another rep.
The motion to add one rep each to RI and NC failed 6-5.
Next, from Article 1 Sect. 10 "No State shall, without the consent of Congress lay imposts or duties on imports or exports; nor with such consent, but to the use of the Treasury of the U. States." This clause was effectively modified on Sep 13th to read, "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its Inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the U. S; and all such laws shall be subject to the revision and control of the Congress"
A motion to strike the last clause, “and all such laws shall be subject to the revision and control of the Congress," failed 7-3-1.
The Sep 13th proviso passed with only VA in dissent.
From the remainder of Article I Section 10, "nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another State, nor with any foreign power. Nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay, until Congress can be consulted."
James McHenry and Daniel Carroll, both of MD, moved that "no State shall be restrained from laying duties of tonnage for the purpose of clearing harbors and erecting light-houses." George Mason supported the measure and explained the need for both in Chesapeake Bay.
Governeur Morris did not think the Constitution prevented States from laying duties on tonnage.
James Madison said it depended on the extent of Congress’ power to regulate commerce. He viewed that power as indivisible; it should be under one authority.
Roger Sherman did not see any problem with concurrent jurisdiction because US law would be supreme in commerce.
John Langdon insisted that tonnage duties fell under the responsibility of the National Government.
On motion "that no State shall lay any duty on tonnage without the Consent of Congress,” it passed 6-4-1.
The amended clauses, “No State shall without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay," passed.
Minor changes were then made to clauses regarding the Presidency.
Edmund Randolph motioned and George Mason seconded to remove Presidential power to pardon treason. It could theoretically be self serving or abused to save his cronies.
Governeur Morris would do away with the power entirely, than have it reside in Congress.
James Wilson thought the President should have power to pardon treason. If used improperly, he could be impeached and prosecuted.
Rufus King supported Senate assent to Presidential pardons. Legislatures are no place for the pardon power. Events in MA proved this.
James Madison would give the power to pardon treason to the Legislature.
Governor Randolph feared the danger to liberty of a combination of the Executive and Senate.
George Mason declared the Senate was too powerful as it was. There cannot be any danger in legislative pardons.
On Governor Randolph’s motion to exclude treason from among the President’s pardon power, it failed 8-2-1.
Governeur Morris motioned and Roger Sherman seconded to allow Congress to make law such that the President, Courts or Dept Heads may hire inferior officers.
James Madison and Governeur Morris did not see the necessity of enumerating the power.
The motion failed 5-5-1.
(Mr. Madison did not explain why the motion was immediately reconsidered and passed without opposition.)
Superfluous wording was removed from Article II Section 1 regarding Presidential elections.
Next, an amendment to Article II Section 2 allowed Congress to determine which officers could be hired by the President without consent of the Senate.
Charles Pinckney and Elbridge Gerry motioned to add to the end of Article III Section 2, "And a trial by jury shall be preserved as usual in civil cases." Nathaniel Gorham & Rufus King noted the trial by jury is different in different States and objected to the motion.
General Pinckney also disagreed and the motion failed without dissent.
From Article IV Section 2, “No person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due,” the word “legally” was struck. After the word “State,” was added, "under the laws thereof." The word legal struck some as offering a moral taint to the institution.
Elbridge Gerry offered a motion to Art. IV. Sect 3. "New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congs," which was defeated by a large majority.
Article IV Section 4, “The United States shall guarantee to every state in this union a Republican form of government, and shall protect each of them against invasion; and on application of the legislature or executive, (Added, after the word "Executive" were inserted the words "when the Legislature can not be convened.") against domestic violence.”
Next up dealt with Art. V. "The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. section of article 1."
(Article I Section 9. “The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”)
Roger Sherman feared ¾ of Congress could abolish other States or deprive them of equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate. (Keeping the feds away from internal policing may have had a significant affect on later court decisions that all but destroyed what remained of State sovereignty. Secondly, remember the “one man, one vote” BS from the Supreme Court? Well, the Senate violates that, and thanks to Roger Sherman it cannot be changed.)
George Mason feared the method of amending the Constitution dangerous because Congress was so involved.
Governeur Morris and Elbridge Gerry moved to require a Convention on application of 2/3 of the States.
James Madison did not apparently see the need, but had no objection to a Convention called by the States.
Mr. Morris’ motion carried without opposition.
Roger Sherman & Elbridge Gerry motioned two additional changes to the clause that were soundly defeated.
Roger Sherman expressed his earlier idea as a motion, "that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate." (Gosh I wish that made it into the document.)
James Madison opposed it on the basis of not cluttering the Constitution up with various, special provisos. Mr. Sherman’s motion failed 8-3.
Roger Sherman (apparently quite perturbed) motioned and David Brearly (NJ) seconded to delete Article V altogether, which failed 8-3-1.
Governeur Morris picked up on the last portion of Mr. Sherman’s motion, "that no State, without its consent shall be deprived of its equal suffrage in the Senate.”
The motion apparently carried without opposition.
George Mason revisited Navigation Acts. (This was something of dirty pool. The deal was CN and the Northern States would let the Constitution protect Slavery in exchange for reasonableness regarding commerce and the associated carrying laws.) A Northern dominated House and Senate would pass laws that could, for instance, subject Southern exports to a Northern shipping monopoly. Mr. Mason motioned, "that no law in the nature of a navigation act be passed before the year 1808, without the consent of 2/3 of each branch of the Legislature."
Mr. Mason’s motion failed 7-3-1.
Edmund Randolph refused to sign the document as written unless provision was made for another General Convention after the various State Ratifying Conventions finished their examinations and offered amendments. He reserved the right to oppose the Constitution in VA.
George Mason agreed and found the powers delegated to Congress to be dangerous. The country would end up a monarchy or a tyrannical aristocracy. The Constitution was drafted without the knowledge of the people and a second Convention would provide a document more consonant with the sense of the people. Without another Convention he would neither sign nor support it.
Charles Pinckney was concerned with the opposition expressed by the members so respected. He described the problem of opening up the Constitution to another general Convention. The States will never agree on their plans; confusion, contrariety will result. He also had reservations. The Executive was contemptibly weak, and Congress ruled commerce with only a simple majority. Still, he predicted general confusion and the sword as the alternative and would therefore support the Constitution.
Elbridge Gerry declined to add his name for several reasons. He disagreed with the length of Senate terms and their re-eligibility, the ability of the House to conceal its journal, Congressional power over elections, too few reps for MA, the three fifths rule, the power to set up monopolies under the commerce clause, the Vice President’s position as President of the Senate. The rights of the citizens were rendered insecure by the necessary and proper clause, a power to raise armies without limit, and without juries trials equivalent to Star Chambers. The best that could be done was provide for another Convention.
Mr. Randolph’s motion failed unanimously.
On the question to agree to the Constitution, as amended. All the States ay.
The Constitution was then ordered to be engrossed, 500 copies to be printed.
And the House adjourned.
Internal Police.
Roger Sherman once again attempted to prevent possible federal interference with any State’s “Internal Police.” What is Internal Police, why was it not accepted in the Constitution and what effect could the clause have had?
Under Internal Police, a government has the power to make laws necessary for the health, morals, and welfare of the populace. It includes power to protect the rights of citizens from abuse by other citizens. In the revolutionary era, there was no question the States had this power. Rhode Island for instance, after declaring independence on May 4th 1776, instructed its Continental Congress delegates to promote establishment of a confederacy that secured its Internal Police.
A couple of men in particular attempted to insert this guarantee into both the Articles of Confederation and the Constitution.
John Dickinson authored the first draft of the Articles of Confederation. One clause provided each State would retain and enjoy “as much of its present Laws, Rights , and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its Internal Police. . . “ The clause did not make the final cut.
At the Constitutional Convention, Roger Sherman attempted several times to include this protection from federal meddling. On the final attempt today, it failed by an 8-3 vote.
Why the pushback? Mr. Madison’s notes are sketchy at best, but it is safe to say States were not respected for some of their wild legislation, and continued refusal to conform to their duties under the Articles of Confederation. It was thought that given the chance, they would once again intrude on federal matters. Assigning Internal Police power in plain language as Mr. Sherman wished to do, would perchance afford an opportunity to once again foil legitimate federal functions. As Governeur Morris expressed it, “The Internal Police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.”
Well, it is a shame this clause (as well as attempts to include Congressional term limits) was rejected. Perhaps Congress in the 1930s and even earlier, would not have moved to eviscerate the concept of enumerated powers and federalism. Perhaps the Supreme Court would have balked at abusing the innocuous Commerce Clause to expand federal power if they also had to face a simple and plainly written phrase, “that no State shall without its consent be affected in its Internal Police.”