September 10, 1787: Amendments and Ratification

"Was he to promote the establishment of a plan which he verily believed would end in tyranny?"
— James Madison, summing up the bind Edmund Randolph saw himself in

Monday, September 10, 1787

How to amend the Constitution

The Convention began its last week with Gerry (MA) moving to reconsider the amendment process, especially the clause requiring Congress to call a convention when two-thirds of the state legislatures asked. Since the U.S. Constitution would stand above the state constitutions, he thought that wrong.

• Hamilton (NY) seconded, for another reason: he wanted Congress itself able to call a convention for amendments. Either way, all amendments would need ratifying — "the people would finally decide."
• Madison (VA) found the article vague: how would a convention be formed, by what rules, with what authority?
• Wilson (PA) moved to require ratification by two-thirds of the states: failed 5–6. Then three-fourths: passed unanimously.

Madison, seconded by Hamilton, proposed a two-step process:

1. Propose: by two-thirds of each house of Congress, or two-thirds of the state legislatures.
2. Ratify: by three-fourths of the state legislatures, or by special conventions in three-fourths of the states.

Rutledge (SC) objected that an amendment might end the slave trade before 1808 — the year from which an earlier compromise let Congress ban it. Wording to meet his objection was added, and the article passed 9–1–1, Delaware against and New Hampshire divided.

How to ratify it

Gerry moved to reconsider ratification: he wanted Congress to approve the document again, objecting to dissolving the Articles of Confederation with "so little scruple or formality." Hamilton agreed, and proposed that each state legislature also vote on whether nine ratifications should be enough.

• Gorham called Hamilton's plan madness: states would disagree on the number, and conditional ratifications would sink the plan.
• Hamilton replied that ratifying states would accept nine anyway, and his way gave reluctant states less to object to.
• Fitzsimons (PA) noted congressional approval had been dropped to spare the Confederation Congress the embarrassment of breaking its own charter.
• Randolph (VA) said that unless the Confederation Congress approved first, he would oppose the whole plan. He thought it strayed from republican principles, and proposed letting state conventions suggest amendments for a second convention "with full power to settle the Constitution finally" — knowing it would fail, but needing it for his conscience.
• Wilson and King (MA) disliked the Gerry and Hamilton proposals; Sherman (CT) liked the method but wanted it in a cover letter, not the Constitution.

Once the motion to reconsider passed, Wilson held nothing back: requiring Congress's approval would let one state block everything — "worse than folly, to rely on the concurrence of the Rhode Island members of Congress," and the same for Maryland and New York. After four months of work, the Convention would be throwing "insuperable obstacles" in its own way. Clymer (PA), King and Rutledge doubted Gerry's idea would even spare Congress embarrassment.

• Hamilton's plan (each state deciding whether nine is enough): failed 1–10, only Connecticut in favor.
• Gerry's (Confederation Congress approval): failed unanimously.

Randolph's objections

Randolph then listed why he would oppose the Constitution:

• the Senate shouldn't try impeachments;
• a presidential veto should be overridable by two-thirds of each house, not three-fourths;
• standing armies should be limited;
• the "necessary and proper" clause went too far;
• navigation acts were too easy to pass;
• export taxes shouldn't be allowed;
• state governors shouldn't be able to ask Congress to help put down insurrections;
• the line between state and national powers, legislative and judicial, was too murky;
• the pardon power shouldn't be unlimited;
• Congress shouldn't set its own pay.

He again urged that the states be able to call a second convention; Franklin (PA) seconded. Mason (VA) asked that the motion wait a day or two, to see what might satisfy Randolph.

Charles Pinckney (SC) moved that the Committee of Style draft "an address to the people" to accompany the Constitution to Congress. Passed unanimously.

In short

• Amendments: proposed by two-thirds of each house of Congress or of the state legislatures; ratified by three-quarters of the states, through legislatures or conventions. None could ban the slave trade before 1808.
• Gerry and Hamilton backed motions meant to give ratification more legitimacy — which, unintentionally in Hamilton's case, would have made it far less likely. Both failed.
• Randolph, listing why he feared "tyranny," proposed state-suggested amendments for a second convention.

Around the Convention

• The First Troop Philadelphia City Cavalry (today part of the Pennsylvania National Guard) asked to give Washington (VA) a dinner; he accepted and suggested September 15.
• Johnson (CT) met the Committee of Style and dined at City Tavern.
• Baldwin (GA) accepted a dinner invitation from Franklin, president of Pennsylvania, for Wednesday.
• McClurg (VA) wrote to Madison from Richmond that reports of unrest in parts of Virginia had some basis, but the state seemed ready to accept whatever plan the Convention produced.
• Robert Morris (PA) wrote to Constable, Rucker and Co. about 191 hogsheads of tobacco and mortgages on farms in Dutchess County, New York.

Philadelphia today

Clear and very warm — 82°. Philadelphian Jacob Hiltzheimer watched five bills signed at the State House in the afternoon, noting it was "exceeding warm," with a west wind that did the upstairs room no good.

The series: The Constitutional Convention: A Day-by-Day Account for September 1787 · previous: September 9, 1787: Homesick · next: September 11, 1787: The Second Draft

Sources

Based on "September 10, 1787: Amendments and Ratification," The Constitutional Convention: A Day-by-Day Account, Independence National Historical Park, National Park Service; a work of the United States government in the public domain. A 1949 portrait of Randolph in the State Department's Diplomatic Reception Rooms is not reproduced.