Posted on 01/17/2011 8:04:52 AM PST by Publius
Publius, I remember it being discussed in the CC but what do you think would have happened if only New York and Virginia failed to ratify the constitution? Would it have survived with eleven states or would they have had to start over? I think ten could have bullied RI into ratification but not New York nor Virginia.
New York had used the interstate trade war to line its coffers, and it was not all that enthusiastic about remaining in the Union. As the largest port of entry for shipping and a financial giant, it would have held out for whatever suited New York. It would have eventually rejoined the Union, but it would have charged quite a price in terms of amendments to the Constitution.
Virginia's failure to ratify would have been a personal embarassment for George Washington, who could not have become the first president. That alone wuuld have doomed the Union under 9, 10 or 11 states. Virginia eventually got its price, the Bill of Rights, drawn up by the Virginian Madison. A failure to ratify would have placed the Bill of Rights front and center and increased its urgency.
Would there have been a second constitutonal convention? I doubt it. Virginia and New York would have insisted on amendments before joining, but I don't think it would have gone farther.
The “necessary and proper” clause was not discussed on 5 June as you imply. Henry violated the rules of the convention from the start and rambled on about the whole document rather than by Article and Section. It was not until 16 June that it was debated.
On that day, delegate George Nicholas got it right, “If, for instance, at the end of the clause granting power to lay and collect taxes, it had been added that they should have power to make necessary and proper laws to lay and collect taxes, who could suspect it to be an addition of power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.”
His actual laundry list of complaints at the end refers to several different areas of the Constitution, all of which were to be discussed - at 277 the powers of the President, specifically Article II, Section 2, at 278 the ability of the Senate to be stymied by a minority of its members (generally Article I), at 280 the placement of the states' fortresses and armories under the federal government (Article I, Section 8), at 298 the implications of control on the placement of elections (Article I Section 4, Article II Section 3), and an apparent complaint at financial reporting at 306, the wording implying that his reference is to the State of the Union address specified in Article II, Section 3. All of these things were quite specific, but to me at least it seemed that his general certainty that liberty was at stake and that a Bill of Rights was needed to offset it is explained by the Necessary and Proper clause.
I could be completly wrong, of course, but that's how it seems to me. I value your opinion on the matter more than you know. Thanks very much for gracing the thread with it.
His latest book, “Restoring the Lost Constitution” is excellent.
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