August 23, 1787: The Supreme Law of the Land

Independence Hall. NPS photo.

"What are the Convention about? When will they rise? … Full of Disputation and noisy as the wind, it is said, that you are afraid of the very windows, and have a man planted under them to prevent the Secrets and doings from flying out."
— William Paterson to Oliver Ellsworth

Thursday, August 23, 1787

The militia

The Committee of Detail proposed giving Congress power "to make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States" — far broader than many wanted.

• Gerry (MA), nearly frantic, said it would make the states mere "drill-sergeants"; he would sooner see Massachusetts citizens disarmed than hand command to Congress — "a system of despotism."
• Madison (VA) tried to calm him: "arming" didn't mean supplying arms. King (MA), also for the clause, contradicted him: it covered how arms were supplied — by the militia, the states or the national treasury.
• Langdon (NH) couldn't see the jealousy: state and national governments weren't enemies but different institutions for the same people. Moving power between them was like taking from his left hand what it couldn't use well and putting it in his right.
• Madison and Randolph (VA) said the states were managing their militias poorly. The clause passed.

No gifts from foreign powers

Charles Pinckney (SC) proposed barring federal officers from accepting "any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State" without Congress's consent. It passed unanimously, without debate — the Emoluments Clause.

The Supremacy Clause

Also approved, a momentous clause from Rutledge (SC): "This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States shall be the supreme law of the several States and of their citizens and inhabitants; and the judges of the several states shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States to the contrary notwithstanding."

A veto over state laws — again

C. Pinckney, seconded by Broom (DE), revived a rejected idea: letting Congress veto ("negative") state laws, now by a two-thirds vote. Madison and Langdon backed him.

• Sherman: unnecessary — the Supremacy Clause just adopted lets courts strike down unconstitutional state laws.
• Mason (VA): how would it work? Must every state law — every road, every bridge — come before Congress, sitting constantly to review them? Ellsworth (CT) also found it unworkable; G. Morris half agreed, and suggested a committee.
• Williamson (NC) was annoyed at the "waste of time."
• Wilson called it the "key-stone" of the arch of government: better to stop a bad law than void it afterward.
• Rutledge: "If nothing else, this alone would damn and ought to damn, the Constitution." It would make the states "mere corporations."

It failed 5–6 — New Hampshire, Pennsylvania, Delaware, Maryland and Virginia in favor.

Paying the nation's debts

The Convention approved requiring the federal government to pay its creditors. Butler (SC) objected: many Revolutionary soldiers had been paid in IOUs never made good, and many desperate veterans had sold them cheaply to speculators. He didn't want to force payment to "the blood-suckers who had speculated on the distresses of others" as well as to those "who had fought and bled for their country," and said he would move the next day to distinguish between them.

Treaties

The draft left treaty-making to the Senate, which Madison and many others thought unwise; the section went to a committee for revision.

In short

• Congress got power to organize, arm and discipline the state militias and govern them in national service.
• The Emoluments Clause passed.
• The Supremacy Clause passed.
• A congressional veto on state laws was raised — and rejected — once more, to several delegates' exasperation.

Around the Convention

• Franklin (PA) met the state's Supreme Executive Council.
• McHenry (MD) wrote to his wife: "My dear Peggy It is altogether uncertain when the convention will rise, but it is likely to be about three weeks hence."
• Paterson (NJ) wrote cheerily from New Brunswick to Ellsworth (CT), wishing the Convention speed — "mainly for my own Sake, for I dread going down again to Philada." The letter missed Ellsworth, who left Philadelphia for home that day.

Philadelphia today

Thomas Clifford told the managers of the Philadelphia Dispensary it had moved to a house he rented on Chestnut Street from John Guest. The private charity, opened in 1786, gave emergency and outpatient care from the city's leading doctors — 1,647 patients in 1787. No other American city offered free medical care like it.

The series: The Constitutional Convention: A Day-by-Day Account for August 16 to 31, 1787 · previous: August 22, 1787: Slavery in a Republic · next: August 24, 1787: How to Choose a President

Sources

Based on "August 23, 1787: The Supreme Law of the Land," 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. The source lists Charles Pinckney as a North Carolina delegate; he represented South Carolina.