HISTORICAL NOTE ON FORMATION OF THE

CONSTITUTION

In June 1774, the Virginia and Massachusetts assemblies independently

proposed an intercolonial meeting of delegates from the several colonies to

restore union and harmony between Great Britain and her American Colonies. Pursuant to these calls there met in Philadelphia in September of that

year the first Continental Congress, composed of delegates from 12 colonies.

On October 14, 1774, the assembly adopted what has become to be known

as the Declaration and Resolves of the First Continental Congress. In that

instrument, addressed to his Majesty and to the people of Great Britain, there

was embodied a statement of rights and principles, many of which were later

to be incorporated in the Declaration of Independence and the Federal Constitution.1

This Congress adjourned in October with a recommendation that another Congress be held in Philadelphia the following May. Before its successor met, the battle of Lexington had been fought. In Massachusetts the colonists had organized their own government in defiance of the royal governor

and the Crown. Hence, by general necessity and by common consent, the second Continental Congress assumed control of the “Twelve United Colonies”,

soon to become the “Thirteen United Colonies” by the cooperation of Georgia. It became a de facto government; it called upon the other colonies to

assist in the defense of Massachusetts; it issued bills of credit; it took steps

to organize a military force, and appointed George Washington commander

in chief of the Army.

While the declaration of the causes and necessities of taking up arms of

July 6, 1775,2 expressed a “wish” to see the union between Great Britain

and the colonies “restored”, sentiment for independence was growing. Finally, on May 15, 1776, Virginia instructed her delegates to the Continental

Congress to have that body “declare the united colonies free and indepen1 The colonists, for example, claimed the right “to life, liberty, and property”, “the rights,

liberties, and immunities of free and natural-born subjects within the realm of England”; the

right to participate in legislative councils; “the great and inestimable privilege of being tried by

their peers of the vicinage, according to the course of [the common law of England]”; “the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws”; “a right peaceably to assemble, consider of their grievances, and

petition the king.” They further declared that the keeping of a standing army in the colonies in

time of peace without the consent of the colony in which the army was kept was “against law”;

that it was “indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other”;

that certain acts of Parliament in contravention of the foregoing principles were “infringement

and violations of the rights of the colonists.” Text in C. Tansill (ed.), Documents Illustrative of

the Formation of the Union of the American States, H. Doc. No. 358, 69th Congress, 1st sess.

(1927), 1. See also H. Commager (ed.), Documents of American History (New York; 8th ed. 1964),

82.

2 Text in Tansill, op. cit., 10.

XVII
dent States.” 3 Accordingly on June 7 a resolution was introduced in Congress declaring the union with Great Britain dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation

to be submitted to the respective colonies.4 Some delegates argued for confederation first and declaration afterwards. This counsel did not prevail. Independence was declared on July 4, 1776; the preparation of a plan of confederation was postponed. It was not until November 17, 1777, that the Congress

was able to agree on a form of government which stood some chance of being approved by the separate States. The Articles of Confederation were then

submitted to the several States, and on July 9, 1778, were finally approved

by a sufficient number to become operative.

Weaknesses inherent in the Articles of Confederation became apparent

before the Revolution out of which that instrument was born had been concluded. Even before the thirteenth State (Maryland) conditionally joined the

“firm league of friendship” on March 1, 1781, the need for a revenue amendment was widely conceded. Congress under the Articles lacked authority to

levy taxes. She could only request the States to contribute their fair share to

the common treasury, but the requested amounts were not forthcoming. To

remedy this defect, Congress applied to the States for power to lay duties

and secure the public debts. Twelve States agreed to such an amendment,

but Rhode Island refused her consent, thereby defeating the proposal.

Thus was emphasized a second weakness in the Articles of Confederation, namely, the liberum veto which each State possessed whenever amendments to that instrument were proposed. Not only did all amendments have

to be ratified by each of the 13 States, but all important legislation needed

the approval of 9 States. With several delegations often absent, one or two

States were able to defeat legislative proposals of major importance.

Other imperfections in the Articles of Confederation also proved embarrassing. Congress could, for example, negotiate treaties with foreign powers,

but all treaties had to be ratified by the several States. Even when a treaty

was approved, Congress lacked authority to secure obedience to its stipulations. Congress could not act directly upon the States or upon individuals.

Under such circumstances foreign nations doubted the value of a treaty with

the new Republic.

Furthermore, Congress had no authority to regulate foreign or interstate commerce. Legislation in this field, subject to unimportant exceptions,

was left to the individual States. Disputes between States with common interests in the navigation of certain rivers and bays were inevitable. Discriminatory regulations were followed by reprisals.

Virginia, recognizing the need for an agreement with Maryland respecting the navigation and jurisdiction of the Potomac River, appointed in June

1784, four commissioners to “frame such liberal and equitable regulations

3 Id. at 19.

4 Id. at 21.

XVIII HISTORICAL NOTE
concerning the said river as may be mutually advantageous to the two States.”

Maryland in January 1785 responded to the Virginia resolution by appointing a like number of commissioners 5 “for the purpose of settling the navigation and jurisdiction over that part of the bay of Chesapeake which lies within

the limits of Virginia, and over the rivers Potomac and Pocomoke” with full

power on behalf of Maryland “to adjudge and settle the jurisdiction to be

exercised by the said State, respectively, over the waters and navigations of

the same.”

At the invitation of Washington the commissioners met at Mount Vernon, in March 1785, and drafted a compact which, in many of its details

relative to the navigation and jurisdiction of the Potomac, is still in force.6

What is more important, the commissioners submitted to their respective States

a report in favor of a convention of all the States “to take into consideration

the trade and commerce” of the Confederation. Virginia, in January 1786,

advocated such a convention, authorizing its commissioners to meet with those

of other States, at a time and place to be agreed on, “to take into consideration the trade of the United States; to examine the relative situations and

trade of the said State; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several State, such an act relative to

this great object, as when unanimously ratified by them, will enable the United

States in Congress, effectually to provide for the same.” 7

This proposal for a general trade convention seemingly met with general approval; nine States appointed commissioners. Under the leadership of

the Virginia delegation, which included Randolph and Madison, Annapolis

was accepted as the place and the first Monday in September 1786 as the

time for the convention. The attendance at Annapolis proved disappointing.

Only five States—Virginia, Pennsylvania, Delaware, New Jersey, and New

York—were represented; delegates from Massachusetts, New Hampshire, North

Carolina, and Rhode Island failed to attend. Because of the small representation, the Annapolis convention did not deem “it advisable to proceed on

the business of their mission.” After an exchange of views, the Annapolis delegates unanimously submitted to their respective States a report in which

they suggested that a convention of representatives from all the States meet

at Philadelphia on the second Monday in May 1787 to examine the defects

in the existing system of government and formulate “a plan for supplying

such defects as may be discovered.” 8

5 George Mason, Edmund Randolph, James Madison, and Alexander Henderson were appointed commissioners for Virginia; Thomas Johnson, Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for Maryland.

6 Text of the resolution and details of the compact may be found in Wheaton v. Wise, 153

U.S. 155 (1894).

7 Transill, op. cit., 38.

8 Id. at 39.

HISTORICAL NOTE XIX
The Virginia legislature acted promptly upon this recommendation and

appointed a delegation to go to Philadelphia. Within a few weeks New Jersey, Pennsylvania, North Carolina, Delaware, and Georgia also made appointments. New York and several other States hesitated on the ground that, without the consent of the Continental Congress, the work of the convention would

be extra-legal; that Congress alone could propose amendments to the Articles of Confederation. Washington was quite unwilling to attend an irregular convention. Congressional approval of the proposed convention became,

therefore, highly important. After some hesitancy Congress approved the suggestion for a convention at Philadelphia “for the sole and express purpose of

revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed

to in Congress and confirmed by the States render the Federal Constitution

adequate to the exigencies of Government and the preservation of the Union.”

Thereupon, the remaining States, Rhode Island alone excepted, appointed in due course delegates to the Convention, and Washington accepted

membership on the Virginia delegation.

Although scheduled to convene on May 14, 1787, it was not until May

25 that enough delegates were present to proceed with the organization of

the Convention. Washington was elected as presiding officer. It was agreed

that the sessions were to be strictly secret.

On May 29 Randolph, on behalf of the Virginia delegation, submitted to

the convention 15 propositions as a plan of government. Despite the fact that

the delegates were limited by their instructions to a revision of the Articles,

Virginia had really recommended a new instrument of government. For example, provision was made in the Virginia plan for the separation of the three

branches of government; under the Articles executive, legislative, and judicial powers were vested in the Congress. Furthermore the legislature was to

consist of two houses rather than one.

On May 30 the Convention went into a committee of the whole to consider the 15 propositions of the Virginia plan seriatim. These discussion continued until June 13, when the Virginia resolutions in amended form were

reported out of committee. They provided for proportional representation in

both houses. The small States were dissatisfied. Therefore, on June 14 when

the Convention was ready to consider the report on the Virginia plan, Paterson

of New Jersey requested an adjournment to allow certain delegations more

time to prepare a substitute plan. The request was granted, and on the next

day Paterson submitted nine resolutions embodying important changes in the

Articles of Confederation, but strictly amendatory in nature. Vigorous debate followed. On June 19 the States rejected the New Jersey plan and voted

to proceed with a discussion of the Virginia plan. The small States became

more and more discontented; there were threats of withdrawal. On July 2,

XX HISTORICAL NOTE
the Convention was deadlocked over giving each State an equal vote in the

upper house—five States in the affirmative, five in the negative, one divided.9

The problem was referred to a committee of 11, there being 1 delegate

from each State, to effect a compromise. On July 5 the committee submitted

its report, which became the basis for the “great compromise” of the Convention. It was recommended that in the upper house each State should have

an equal vote, that in the lower branch each State should have one representative for every 40,000 inhabitants, counting three-fifths of the slaves, that

money bills should originate in the lower house (not subject to amendment

by the upper chamber). When on July 12 the motion of Gouverneur Morris

of Pennsylvania that direct taxation should also be in proportion to representation was adopted, a crisis had been successfully surmounted. A compromise spirit began to prevail. The small States were not willing to support a

strong national government.

Debates on the Virginia resolutions continued. The 15 original resolutions had been expanded into 23. Since these resolutions were largely declarations of principles, on July 24 a committee of five 10 was elected to draft a

detailed constitution embodying the fundamental principles which had thus

far been approved. The Convention adjourned from July 26 to August 6 to

await the report of its committee of detail. This committee, in preparing its

draft of a Constitution, turned for assistance to the State constitutions, to

the Articles of Confederation, to the various plans which had been submitted to the Convention and other available material. On the whole the report

of the committee conformed to the resolutions adopted by the Convention,

though on many clauses the members of the committee left the imprint of

their individual and collective judgments. In a few instances the committee

avowedly exercised considerable discretion.

From August 6 to September 10 the report of the committee of detail

was discussed, section by section, clause by clause. Details were attended to,

further compromises were effected. Toward the close of these discussions, on

September 8, another committee of five 11 was appointed “to revise the style

of and arrange the articles which had been agreed to by the house.”

On Wednesday, September 12, the report of the committee of style was

ordered printed for the convenience of the delegates. The Convention for 3

days compared this report with the proceedings of the Convention. The Constitution was ordered engrossed on Saturday, September 15.

The Convention met on Monday, September 17, for its final session. Several of the delegates were disappointed in the result. A few deemed the new

9 The New Hampshire delegation did not arrive until July 23, 1787.

10 Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth

of Connecticut, and Wilson of Pennsylvania.

11 William Samuel Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur

Morris of Pennsylvania, James Madison of Virginia, and Rufus King of Massachusetts.

HISTORICAL NOTE XXI
Constitution a mere makeshift, a series of unfortunate compromises. The advocates of the Constitution, realizing the impending difficulty of obtaining

the consent of the States to the new instrument of Government, were anxious to obtain the unanimous support of the delegations from each State. It

was feared that many of the delegates would refuse to give their individual

assent to the Constitution. Therefore, in order that the action of the Convention would appear to be unanimous, Gouverneur Morris devised the formula

“Done in Convention, by the unanimous consent of the States present the

17th of September . . . In witness whereof we have hereunto subscribed our

names.” Thirty-nine of the forty-two delegates present thereupon “subscribed” to the document.12

The convention had been called to revise the Articles of Confederation.

Instead, it reported to the Continental Congress a new Constitution. Furthermore, while the Articles specified that no amendments should be effective

until approved by the legislatures of all the States, the Philadelphia Convention suggested that the new Constitution should supplant the Articles of Confederation when ratified by conventions in nine States. For these reasons, it

was feared that the new Constitution might arouse opposition in Congress.

Three members of the Convention—Madison, Gorham, and King—were

also Members of Congress. They proceeded at once to New York, where Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress on September 28, after some debate, decided to

submit the Constitution to the States for action. It made no recommendation for or against adoption.

Two parties soon developed, one in opposition and one in support of the

Constitution, and the Constitution was debated, criticized, and expounded

clause by clause. Hamilton, Madison, and Jay wrote a series of commentaries, now known as the Federalist Papers, in support of the new instrument

of government.13 The closeness and bitterness of the struggle over ratification and the conferring of additional powers on the central government can

scarcely be exaggerated. In some States ratification was effected only after a

bitter struggle in the State convention itself.

Delaware, on December 7, 1787, became the first State to ratify the new

Constitution, the vote being unanimous. Pennsylvania ratified on December

12, 1787, by a vote of 46 to 23, a vote scarcely indicative of the struggle

which had taken place in that State. New Jersey ratified on December 19,

1787, and Georgia on January 2, 1788, the vote in both States being unanimous. Connecticut ratified on January 9, 1788; yeas 128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of 19 votes in a convention

12 At least 65 persons had received appointments as delegates to the Convention; 55 actually attended at different times during the course of the proceedings; 39 signed the document.

It has been estimated that generally fewer than 30 delegates attended the daily sessions.

13 These commentaries on the Constitution, written during the struggle for ratification, have

been frequently cited by the Supreme Court as an authoritative contemporary interpretation of

the meaning of its provisions.

XXII HISTORICAL NOTE
with a membership of 355, endorsed the new Constitution, but recommended that a bill of rights be added to protect the States from federal encroachment on individual liberties. Maryland ratified on April 28, 1788; yeas

63, nays 11. South Carolina ratified on May 23, 1788; yeas 149, nays 73. On

June 21, 1788, by a vote of 57 to 46, New Hampshire became the ninth State

to ratify, but like Massachusetts she suggested a bill of rights.

By the terms of the Constitution nine States were sufficient for its establishment among the States so ratifying. The advocates of the new Constitution realized, however, that the new Government could not succeed without

the addition of New York and Virginia, neither of which had ratified. Madison, Marshall, and Randolph led the struggle for ratification in Virginia. On

June 25, 1788, by a narrow margin of 10 votes in a convention of 168 members, that State ratified over the objection of such delegates as George Mason and Patrick Henry. In New York an attempt to attach conditions to ratification almost succeeded. But on July 26, 1788, New York ratified, with a

recommendation that a bill of rights be appended. The vote was close—yeas

30, nays 27.

Eleven States having thus ratified the Constitution,14 the Continental

Congress—which still functioned at irregular intervals—passed a resolution

on September 13, 1788, to put the new Constitution into operation. The first

Wednesday of January 1789 was fixed as the day for choosing presidential

electors, the first Wednesday of February for the meeting of electors, and

the first Wednesday of March (i.e. March 4, 1789) for the opening session of

the new Congress. Owing to various delays, Congress was late in assembling, and it was not until April 30, 1789, that George Washington was inaugurated as the first President of the United States.

14 North Carolina added her ratification on November 21, 1789; yeas 184, nays 77. Rhode

Island did not ratify until May 29, 1790; yeas 34, nays 32.

HISTORICAL NOTE XXIII