Resol: 19. referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it was next taken into consideration.
Mr. Elseworth moved that it be referred to the Legislatures of the States for ratification. Mr. Patterson 2ded. the motion.
So Mr. Elseworth wanted the state legislatures to ratify it and his motion was seconded.
Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Govts. were (not) derived from the clear & undisputed authority of the people. This was the case in Virginia. Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.
So Col Mason says a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. Think about that. This, having the people ratify the constitution, is more important then any of the other resolutions. He goes on to say this is because if the legislatures are to be the competent authority then succeeding legislatures would then have equal authority to undo it.
Mr Randolph. One idea has pervaded all (our) proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections agst. a ratification by Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States agst. that of the Confederation which has had no higher sanction than Legislative ratification. — Whose opposition will be most likely to be excited agst. the System? That of the local demogagues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people.
Mr. Randolph says that the whole convention has been pervaded by the one idea that the states will oppose this new constitution. At the end calls for the ratification to be referred to the people.
Mr. Gerry. The arguments of Col. Mason & Mr. Randolph prove too much, they prove an unconstitutionality in the present federal (system) & even in some of the State Govts. Inferences drawn from such a source must be inadmissable. Both the State Govts. & the federal Govt. have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be so as well as the others, and everything done in pursuance of the article must have the same high authority with the article. — Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.
Mr. Gerry doesn't agree thinks it will cause confusion if the people ratify it.
Mr. Ghorum was agst. referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Genl. Govt. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro' a Convention. 3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a Convention Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massachts. 4. the Legislatures will be interrupted with a variety of little business. by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether the national system. 5 — If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say. that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours (by the regulation of her trade), makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States.
Mr. Ghorum is against the legislatures ratifying, wants the people to because he thinks they will discuss it more candidly.
Mr. Elseworth. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as wd be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Natl. Govt. carries with it that of strengthening the public debt. It was said by Col. Mason 1. that the Legislatures have no authority in this case. 2. that their successors having equal authority could rescind their acts. As to the 2d. point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1st. point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congs. applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must unanimously concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.
Here we see Mr. Elseworth again arguing for the state legislatures to ratify the constitution.
Mr. Williamson thought the Resoln. (19) so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.
Mr. Williamson thought it didn't matter but preferred the conventions because it would be more likely to be composed of the ablest men.
Mr. Govr. Morris considered the inference of Mr. Elseworth from the plea of necessity as applied to the establishment of a new System on ye. consent of the people of a part of the States, in favor of a like establishnt. on the consent of a part of the Legislatures as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a majority of them; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendmt. moved by Mr. Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.
Here Morris is again arguing for the people to ratify it because then only the people can alter it.
Mr. King thought with Mr. Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with Mr. E— also that the plea of necessity was as valid in the one case as in the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Congs. one had been that such powers as would operate within the State, could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the States Legislatures might derive from their oaths to support & maintain the existing Constitutions.
Mr. King here says that the state legislature has competent authority to ratify it but preferred a the people ratify it to get rid of any doubts of the legitimacy of the constitution.
Mr. (Madison) thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given, a power to the Legislature to concur in alterations of the federal Compact.
But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a preexisting law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.
Madison then replies that the legislatures were incompetent to the changes. That ratification must be obtained from the people. He says this is the difference between a league or a treaty, and a Constitution. In other words if the states ratify the constitution it is just a league or treaty but when the people do it is more. He goes on to say with a treaty the law of nations say that a breach of any one article by any of the parties, frees the others. But in the case of a union of the people it excludes this interpretation. (i.e. one party(state) can't just leave because another party(state) breached some part of it.
On question on Mr Elseworth's motion to refer the plan to the Legislatures of the States N. H. no. Mas. no. Ct. ay. Pa. no- Del. ay- Md. ay. Va. no. N- C- no. S. C- no. Geo. no. [Ayes — 3; noes — 7.]
Here we see that the motion to have the legislatures(the states) ratify the constitution was defeated 3-7.
Mr. Govr. Morris moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, amend, & establish the same. — Not seconded.
Now that they settled the question of who would ratify the constitution(the people) they then moved on to how the people would ratify it. Govr Morris suggested a general convention of the representatives of the people. There was no second so there was no further discussion on his suggestion so we have no way of knowing why he suggested a general convention.
On question for agreeing to Resolution 19, touching the mode of Ratification (as reported from the Committee of the Whole; vi, to refer the Constn. after the approbation of Congs. to assemblies chosen by the people.
N. H. ay. Mas- ay. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes — 9; noes — 1.] They then moved on to voting on whether the mode of ratification should be done by assemblies chosen by the people. This passed 9-1.
When we look at the whole context of the debate on who should ratify the constitution it is clear they decided against states ratifying it and wanted the people to ratify it.
Don't worry I believed for years that the states ratified the constitution. Then I read the notes on the constitution, the federalists and anti-federalist letters and other writings at the actual time of the ratification. It is clear from this evidence that the framers of the constitution wanted the people to ratify the constitution.
The states had to ratify the constitution.
In the Federalist Papers, Madison made it quite clear “the people” was the people of each sovereign state.
“...the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States.... Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act” (Federalist 39).’ James Madison
Only the legislatures of each state could exercise the state’s sovereignty. That is clear set out in each state constitution.