Mason seeks a few hours to add a Bill of Rights. The delegates reject the idea, but regret it later. Everyone ends up with a different understanding of the commerce clause. The delegates have a raucous party at the City Tavern, rally the next morning for a long day, agree to ban domestic emoluments, settle on the President’s pardon power, and decide not to do this again. The Patterson team discusses the tonnage clause and whether a President can pardon himself.
Gerry worries about weakening the role of the states in the amendment process; Hamilton wants to leave them out altogether. Wilson declares it worse than folly for Congress to have a say in ratification. The Committee of Style offers a new draft. The delegates reconsider the Presidential veto power. Mason does some arithmetic. Congress's powers are questioned. The Patterson team discusses past and current attempts at a new convention.
The delegates debate the duties of the Vice President, where he belongs, and if he’s even necessary. Particular powers of the executive are considered, and the delegates fleetingly revisit impeachment. Mason resurrects the Privy Council to advise on appointments, but King kills it for good. Madison gets hung up on peace treaties. The Patterson team weighs in on some of the final debates before the articles head into the Committee of Style.
The delegates discuss the limits of ineligibility. Madison has a change of heart regarding general welfare. The delegates introduce the Vice President (finally). Morris methodically defends the electoral college, Rutledge tries to stall, and Gerry makes things needlessly complicated (again). Wilson fears a President that is but a minion of the Senate; Hamilton fears a monster. The Patterson team discusses at least a dozen ways to select the executive.
The delegates debate the addition of new states to the union. Connecticut sticks up for Vermont, Wilson freaks out, and Martin gets in some good zingers. The delegates decide how many states should be required for ratification after some complex proposals. Morris suggests speed, Gerry urges unanimity, Mason makes threats, and Randolph self-destructs. The Committee on Postponed Parts is formed. The Patterson team weighs in on the use of committees and how to name them.
The delegates return to the pardon power. Sherman proposes federalizing state militias. Dickinson tries to expand judicial impeachment. Pinckney protects religious liberty. Randolph loses his cool. The delegates debate supermajority requirements for laws regulating commerce after some Southern delegates walk away from their promises. The Patterson team discusses the seeds of the Civil War built into the Constitution’s treatment of slavery.
Luther Martin rails against slavery, and Georgia and South Carolina rail back. An awful compromise is reached based on some unexpected alliances. Mason advocates for sumptuary laws, but the other delegates decide that the law of necessity is enough. The delegates consider the financial crisis of their time, but let the issue pass by. The Patterson team considers a medley of timely provisions like the foreign emoluments clause and the pardon power.
Pinckney proposes incorporating individual rights, but the delegates don’t have much interest. Treason is narrowly defined by the Convention. The delegates debate ex post facto laws, and Wilson assumes a bit too much. The delegates revisit the issue of slavery, and discussions get tense. The Patterson team discusses the delegates’ departures from the English experience in the name of constitutional rights.
The delegates worry about insurrection, but dispute when the national government can step in. Gerry tries to limit the size of standing armies. Washington gets sarcastic. The Convention gives Congress the exclusive power to “declare” war, but gives the President considerable flexibility. The Patterson team discusses how the power to declare war has become blurred over time, and learns the difference between a letter of marque and a letter of reprisal.
The delegates narrowly decide against relaxing citizenship requirements. The Convention debates the Senate’s ability to alter spending bills. Dickinson urges experience as the only guide, as “reason may mislead us,” Madison notes some ambiguities, and Randolph and Rutledge worry about marketing. The delegates close the door on general and broad powers, but open the window to necessary and proper ones. George Read tries to exorcise paper money.
In this bonus episode, we had the pleasure of speaking with Professor Mary Bilder, the author of Madison’s Hand: Revising the Constitutional Convention, a detailed study of Madison’s Notes of the Constitutional Convention. We discussed the nature of legislative diaries like Madison’s Notes, Madison’s drafting process and subsequent revisions to the Notes, his relationship with Thomas Jefferson, and how all of this informs our current reading of the Notes.
Morris tries to save the country from aristocracy through aristocracy. Pinckney takes things too far on behalf of the 1%. Conflicting principles and pragmatic concerns prevent the adoption of property restrictions. The delegates debate citizenship requirements, disregarding the feelings of the foreign-born delegates. The Patterson team weighs in on foreign aid in the Revolution and the economic interpretation of the Constitution.
The delegates gradually return from recess, though New Jersey takes its time crossing the river. The Committee of Detail takes some liberties in drafting. The draft constitution is distributed, and Maryland receives it poorly. Madison fears too many congressmen. The delegates conclude there should be a permanent seat of government, but not where. The Patterson team considers some of the less prominent provisions of the draft constitution.
The delegates brainstorm ever-wilder methods for selecting the executive, but end up back where they started. Franklin argues that leaving public office is a promotion, and gets sassed by Morris. Mason proposes property qualifications for elected officials, but Madison stands up for … slightly broader property qualifications. The Convention adjourns for ten days to allow the Committee of Detail to write everything down, Washington goes fishing, and Madison frets.
New Hampshire finally shows up, without a per diem. The delegates debate the process for ratification and whether state legislatures can be trusted to do anything right. Nathaniel Gorham asks what will happen if Rhode Island won’t play along. Everyone tries to figure out how to select the executive and things get creative. The Patterson team considers the merits of election by lottery and whether the delegates can tell when someone is joking.
The delegates revisit the Executive Power. The Judicial Branch finally comes up again and the delegates debate how to pick judges. Nathaniel Gorham proposes that the Executive pick judges with the Senate’s “advice and consent,” though nobody really knows what this means. The Council of Revision makes another appearance but the delegates want judges to stay in their lane. Chief Justice Jay writes to Washington, and civility reigns, except when it doesn’t.
The delegates finally compromise on representation when the large states throw in the towel. Roger Sherman tries to protect state police powers. The delegates reject a veto of state legislation but unanimously support making federal laws supreme. The Patterson team discusses whether the Connecticut compromise still makes sense and the evolution of the federal supremacy and the preemption doctrine. The Treaty Power gets an in-depth look.
Debate continues on whether and how to account for enslaved people in determining representation in the legislature. The North-South divide widens. The delegates tie representation to taxation and approve the three-fifths ratio for both. The delegates try to semantically conceal their compromise, but fool no one. The Northwest Ordinance is passed in Congress, with suspicious timing. The Patterson team weighs in on the legacy of the three-fifths clause and the delegates’ failure to reckon with the immorality of slavery.
The delegates debate how to apportion representation in the lower house. The Morris Committee proposes an allocation based on guesswork. The King Committee proposes an alternative based on counting three-fifths of enslaved people. The delegates debate whether and how to factor enslaved people into representation, but no one speaks for the unrepresented. Potential western states complicate matters. The census is proposed.
The delegates celebrate Independence Day. Gerry presents the committee’s proposal to the Convention with diffidence. A subcommittee is formed to address the calculation of proportional representation. The Patterson team ponders the Spirit of ’76, the benefits of some time off, and the delegates’ increasing willingness to reach a compromise.
Delegates start to flee the Convention. Hamilton and Washington get pessimistic. The delegates deadlock over proportional versus equal state representation. Connecticut renews its proposal. The Gerry Committee tackles the question of legislative representation after being stacked with small-state friendly delegates. The Patterson team discusses the shifting tide in favor of the smaller states and the eccentricities of Pennsylvania delegate Gouverneur Morris.
On this special bonus episode, we had the pleasure of interviewing Joshua Matz, author with Professor Laurence Tribe of the excellent new book To End a Presidency: The Power of Impeachment. Joshua discussed with us what we can learn from the Constitutional Convention about the meaning of the Impeachment Clause and the purpose of impeachment, as well as what we can learn from the so-called “common law” of impeachment—examples of impeachments, near impeachments, and impeachment discussions in our country’s history.
The delegates debate whether Senators should be paid. South Carolina argues for rule by the wealthy. The delegates agree on six-year Senate terms. Ben Franklin suggests the convention seek divine inspiration. The Patterson team considers how much democracy is too much democracy.
Luther Martin delivers a two-day speech with much diffuseness. Madison argues the small states have nothing to fear. Connecticut proposes a compromise. The mood amongst the delegates continues to deteriorate. Madison accuses Connecticut of failing to support to war effort. Delaware threatens to ally with foreign nations. Ben Franklin tries to bring the sides together. The Patterson team weighs the merits of proportional representation.
The convention falls into chaos. Madison’s judgment slips, and he makes not-so-veiled threats against small states. Additional delegates try to push their own extreme visions. Connecticut tries to restore peace.
Hamilton finally speaks up, keeps speaking straight through lunch, damages his reputation, and is otherwise ignored. The benefits and perils of an elective monarchy and legislature. The Patterson team revisits the utility of the electoral college, muses about Old Bacon Face, and wonders whether people “begin to be tired of an excess of democracy.”
The Large States and Deep South support one another. Gerry takes on the three-fifths compromise. New Jersey stalls for time and introduces an alternative plan for a federal government. The Patterson team takes the New Jersey plan seriously.
Delegates debate whether lower federal courts are worth the money and how to select judges. Franklin makes an unorthodox proposal. The council of revision resurfaces and the judicial veto is rejected. The delegates debate the method of electing Senators. Wilson makes another stand for popular election. The convention stalls on a proposal to allow Congress to veto State laws. The Patterson team discusses lifetime appointments, the Supreme Court and the perceived importance of State involvement in the Senate.
Virginia presses its plan with broad outlines for the executive, legislative, and judicial branches. Fear and loathing of a return to a monarchy. The delegates nonetheless opt for a single executive, with a veto, but defer how they will be elected. Wilson makes a stand for popular election, and is entirely ignored. The Patterson team discusses the impact of the electoral college in recent elections, the powers of the modern presidency, and the declining use of the presidential veto.
The convention opens. The Virginia delegation introduces its plan for Government including a national executive, national judiciary, and, crucially, proportional representation in the national legislature. The small states are not pleased. Pinckney’s plan is ignored. The Patterson team takes an historical detour to discuss Dorr’s rebellion and the justiciability of constitutional provisions.
Introduction: “The difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the American downfall.”
Introducing a new podcast from Patterson Belknap Webb & Tyler LLP. Who we are and what we do. The constant presence of the constitution in our daily civic life, and the benefits of discussing and learning from it. General approach for the podcast. The limitations of the Articles of Confederation, Shay’s rebellion, and the fear of anarchy among the political elite. The Annapolis Convention, and the Confederation Congress’s blessing of the Constitutional Convention (within limits). The selection of delegates for the Convention, and who was (and wasn’t) represented. Washington meets with Franklin, and the large states plot their first move.
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