Was James Madison Fibbing?

In the latter part of July 1788, the convention convened in Poughkeepsie to determine whether New York would ratify the United States Constitution was approaching conclusion.  Several days earlier, on July 17, 1788, anti-Constitution delegate Melancton Smith had proposed that the delegates ratify the Constitution.  But there was a significant catch: New York would expressly reserve the right to recede if the new Congress did not authorize, within a specified number of years, a convention under Article V for the consideration of amendments.  Smith's motion provided in relevant part (emphasis added):

[T]he Convention . . . have therefore agreed to assent to and ratify the said Constitution in the firmest confidence that an opportunity will be speedily given to revise and amend the said Constitution, in the mode pointed out in the fifth article thereof, expressly reserving nevertheless to this state a right to recede and withdraw from the said Constitution, in case such opportunity be not given within ____ years.

James Madison was then in New York City, having recently come from Virginia, where he had successfully led the pro-Constitution forces to victory at that state's ratification convention in late June.  On July 20, 1788, Madison wrote a response to a letter he had received from Alexander Hamilton in Poughkeepsie, in which Hamilton somewhat sheepishly advised Madison that he was inclined to go along with Smith's proposal as the best that could be done.  Madison fired back a letter in which he advised that Smith's proposal was unacceptable and had to be rejected (bold added):

To Alexander Hamilton
N. York Sunday Evening [July 20, 1788]

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.

[P.S.] This idea of reserving [a] right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

This post focuses on Madison's postscript, in which he stated that the Virginia Convention had considered "[t]his idea of reserving right to withdraw" similar to that proposed by Melancton Smith and had rejected it on the grounds that it was "a conditional ratification which was itself considered as worse than a rejection."  The bottom line question: was Madison's assertion true?  Or was Jemmy fibbing?

Madison's postscript in fact contains two assertions: (1) Did the Virginia Convention consider the reservation of a right to withdraw akin to Smith's?  And (2) Did the Virginia Convention reject it because it was a conditional ratification worse than a rejection?  We consider each in turn.

George Wythe's Motion

In her fine book Ratification: The People Debate the Constitution, 1787-1788, Pauline Maier identifies one instance in which the idea of ratification subject to a right to withdraw may have been presented at the Virginia Convention.

On Tuesday June 24, 1788 George Wythe took the floor of the Convention, then sitting as a committee of the whole, and moved for ratification.  The motion, however, was "complex."  Among other things, it described a number of essential rights that could not be abridged under the Constitution, such as liberty of conscience and freedom of the press.  It also specified (in the words of Prof. Maier) "that any imperfections in the Constitution should be addressed through the amending process it prescribed rather than endanger the union by seeking previous amendments."

Although the record is unclear, Wythe may also have proposed that Virginia's ratification would "cease to be obligatory" if recommended amendments were not acted on within two years:

Wythe then moved to his main resolutions: that, in the opinion of committee of the whole, the Constitution should be ratified, and that the convention should recommend amendments to the first federal Congress.  He perhaps asked that another another committee draw up those amendments.  According to Patrick Henry, the text of Wythe's motion, which [David] Robertson [the Reporter of the Convention] did not include in the Debates - also said that Virginia's ratification would "cease to be obligatory" if the amendments the convention proposed were not enacted.

A look at Volume 3 of Elliot's Debates confirms that the official report of the Virginia Convention did not, in fact, include a right of withdrawal in Wythe's motion.  However, the reporter himself admitted that Wythe "spoke so very low that his speech could not be fully comprehended."  For the record, here is Wythe's speech as recorded.  I have added additional paragraph breaks; the emphases are in the original:

Mr. WYTHE arose, and addressed the chairman; but he spoke so very low that his speech could not be fully comprehended.

He took a cursory view of the situation of the United States previous to the late war, their resistance to the oppression of Great Britain, and the glorious conclusion and issue of that arduous conflict. To perpetuate the blessings of freedom, happiness, and independence, he demonstrated the necessity of a firm, indissoluble union of the states. He expatiated on the defects and inadequacy of the Confederation, and the consequent misfortunes suffered by the people. He pointed out the impossibility of securing liberty without society, the impracticability of acting personally, and the inevitable necessity of delegating power to agents.

He then recurred to the system under consideration. He admitted its imperfection, and the propriety of some amendments. But the excellency of many parts of it could not be denied by its warmest opponents. He thought that experience was the best guide, and could alone develop its consequences. Most of the improvements that had been made in the science of government, and other sciences, were the result of experience. He referred it to the advocates for amendments, whether, if they were indulged with any alterations they pleased, there might not still be a necessity of alteration.

He then proceeded to the consideration of the question of previous or subsequent amendments. The critical situation of America, the extreme danger of dissolving the Union, rendered it necessary to adopt the latter alternative. He saw no danger from this. It appeared to him, most clearly, that any amendments which might be thought necessary would be easily obtained after ratification, in the manner proposed by the Constitution, as amendments were desired by all the states, and had already been proposed by the several states.

He then proposed that the committee should ratify the Constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress which should first assemble under the Constitution, to be acted upon according to the mode prescribed therein.

However, Prof. Maier correctly observes that Patrick Henry's subsequent remarks appear to confirm that he, at least, heard Wythe propose some sort of right to withdraw.  After Wythe concluded, Henry, the leader of the Anti forces at the convention, immediately rose to urge that Virginia should refuse to ratify the Constitution without prior amendments.  What responsible party, Henry argued, would enter into a compact without first obtaining assurances on the most critical points?  In this context, Henry indicated that (emphasis added):

According to the honorable member's proposal, the ratification will cease to be obligatory unless they accede to these amendments.  We have ratified it.  You have committed a violation, will they say.  They have not violated it.  We say, we will go out of it.  You are then reduced to a sad dilemma--to give up these three rights [Henry also complained that Wythe had identified only three rights as having been omitted], or leave the government.  This is worse than our present Confederation, to which we have hitherto adhered honestly and faithfully.  We shall be told we have violated it, because we have left it for the infringement and violation of conditions which they never agreed to be a part of the ratification.  The ratification will be complete.  The proposal is made by the party.  We, as the other, accede to it, and propose the security of these three great rights; for it is only a proposal. In order to secure them, you are left in that state of fatal hostility which I shall as much deplore as the honorable gentleman.  I exhort gentlemen to think seriously before they ratify this Constitution, and persuade themselves that they will succeed in making a feeble effort to get amendments after adoption.  

On balance, then, it appears that Madison did correctly relate "[t]his idea of reserving right to withdraw was started at Richmd."  But what about Madison's second assertion - that the "idea of reserving right to withdraw" was "considered as a conditional ratification which was itself considered as worse than a rejection"?  For the answer to that question, let's look at what became of Wythe's proposal.

The Response to Wythe's Proposal

As we have seen, Patrick Henry immediately attacked Wythe's proposal on the grounds that anything other than prior amendments would be ineffective and foolish:

With respect to subsequent amendments, proposed by the worthy member, I am distressed when I hear the expression. It is a new one altogether, and such a one as stands against every idea of fortitude and manliness in the states, or any one else. Evils admitted in order to be removed subsequently, and tyranny submitted to in order to be excluded by a subsequent alteration, are things totally new to me. But I am sure the gentleman meant nothing but to amuse the committee. I know his candor. His proposal is an idea dreadful to me. I ask, does experience warrant such a thing from the beginning of the world to this day? Do you enter into a compact first, and afterwards settle the terms of the government?

***

I cannot conclude without saying that I shall have nothing to do with it, if subsequent amendments be determined upon. Oppressions will be carried on as radically by the majority when adjustments and accommodations will be held up. I say, I conceive it my duty, if this government is adopted before it is amended, to go home. I shall act as I think my duty requires. Every other gentleman will do the same. Previous amendments, in my opinion, are necessary to procure peace and tranquillity. I fear, if they be not agreed to, every movement and operation of government will cease; and how long that baneful thing, civil discord, will stay from this country, God only knows: When men are free front restraint, how long will you suspend their fury? The interval between this and bloodshed is but a moment. The licentious and wicked of the community Will seize with avidity every thing you hold. In this unhappy situation, what is to be done? It surpasses my stock of wisdom. If you will, in the language of freemen, stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you; not otherwise.

Henry's long (pp. 587-596) and vehement speech allowed the pro-Constitution forces to focus the substance of his proposed amendments and the danger of requiring that they be incorporated into the Constitution as a condition of ratification - while avoiding Wythe's proposal altogether.  Governor Edmund Randolph followed Henry's speech with an equally long speech of his own, in which he contrasted the catastrophe of conditional ratification with the efficacy of post-ratification recommended amendments, never once mentioning Wythe's compromise:

What are we about to do? To make this [prior amendments] the condition of our coming into this government. I hope gentlemen will never agree to this. If we declare that these amendments, and a bill of rights containing twenty articles, must be incorporated into the Constitution before we assent to it, I ask you whether you may not bid a long farewell to the Union? It will produce that deplorable thing--the dissolution of the Union--which no man yet has dared openly to advocate. . . .  Let gentlemen seriously ponder the calamitous consequences of dissolving the Union in our present situation. I appeal to the great Searcher of hearts, on this occasion, that we behold the greatest danger that ever happened hanging over us; for previous amendments are but another name for rejection. They will throw Virginia out of the Union, and cause heartaches to many of those gentlemen who may vote for them.

But let us consider things calmly. Reflect on the facility of obtaining amendments if you adopt, and weigh the danger if you do not. Recollect that many other states have adopted it, who wish for many amendments. I ask you if it be not better to adopt, and run the chance of amending it hereafter, than run the risk of endangering the Union. The Confederation is gone; it has no authority. If, in this situation, we reject the Constitution, the Union will be dissolved, the dogs of war will break loose, and anarchy and discord will complete the ruin of this country. Previous adoption will prevent these deplorable mischiefs. The union of sentiments with us in the adopting states will render subsequent amendments easy. I therefore rest my happiness with perfect confidence on this subject.

When Madison himself rose somewhat later (pp. 616-622) that same day, he likewise ignored Wythe's compromise, framing the choice as one between ratification with suggested amendments and requiring "certain alterations, as the previous condition of [Virginia's] accession":

Suppose eight states only should ratify, and Virginia should propose certain alterations, as the previous condition of her accession. If they should be disposed to accede to her proposition, which is the most favorable conclusion, the difficulty attending it will be immense. Every state which has decided it, must take up the subject again. They must not only have the mortification of acknowledging that they had done wrong, but the difficulty of having a reconsideration of it among the people, and appointing new conventions to deliberate upon it. They must attend to all the amendments, which may be dictated by as great a diversity of political opinions as there are local attachments. When brought together in one assembly, they must go through, and accede to, every one of the amendments.

The gentlemen who, within this house, have thought proper to propose previous amendments, have brought no less than forty amendments, a bill of rights which contains twenty amendments, and twenty other alterations, some of which are improper and inadmissible. Will not every state think herself equally entitled to propose as many amendments? And suppose them to be contradictory! I leave it to this Convention whether it be probable that they can agree, or agree to any thing but the plan on the table; or whether greater difficulties will not be encountered than were experienced in the progress of the formation of the Constitution.

***

I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say, with a great deal of propriety, "It is not proper, decent, or right, in you, to demand that we should reverse what we have done. Do as we have done; place confidence in us, as we have done in one another; and then we shall freely, fairly, and dispassionately consider and investigate your propositions, and endeavor to gratify your wishes. But if you do not do this, it is more reasonable that you should yield to us than we to you. You cannot exist without us; you must be a member of the Union.

Wythe's proposal never resurfaced.  The next day, Wednesday June 25, 1788, after further unrelated debate, the Virginia Convention, sitting as committee of the whole, rejected, by a vote of 80 to 88, a resolution requiring the submission of proposed amendments to the other states before ratification.  The Convention then adopted, by a vote of 89 to 79, a resolution ratifying the Constitution with recommended amendments only:

Resolved, That it is the opinion of this committee, that the said Constitution be ratified. But in order to relieve the apprehensions of those who may be solicitous for amendments,-

Resolved, That it is the opinion of this committee, that whatsoever amendments may be deemed necessary, be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof.

So was James Madison fibbing when he stated that "This idea of reserving right to withdraw was . . . considered [by the Virginia Convention] as a conditional ratification which was itself considered as worse than a rejection"?  I would say the answer is clearly "yes." The only person who addressed that aspect of Wythe's proposal was Patrick Henry.  And, as we have seen, he attacked it as ineffectual.  The clear import of Madison's comment to Hamilton was that the pro-Constitution forces at the Virginia Convention had objected to the proposal as "conditional" and "worse than a rejection."  The available record indicates that they did nothing of the sort.  Nor is there any reason to believe that the Virginia Convention rejected Wythe's proposal for that reason.

Publius Valerius Publicola and the Federalist Papers

You probably know that Alexander Hamilton, John Jay and James Madison wrote the Federalist Papers under the pseudonym "Publius." Publius was a common Roman name, and I always assumed that the Federalist authors used it generically, to invoke the aura of the Roman republic, not to refer to a specific person.

But today I heard that the Federalist authors did mean to summon up the image of a particular Roman. A quick check of the Wikipedia entry for the Federalist Papers corroborates that at least one academic has asserted that Hamilton decided to use the name "in honor of" a specific Roman: Publius Valerius Publicola.

Hamilton chose "Publius" as the pseudonym under which the series would be written. While many other pieces representing both sides of the constitutional debate were written under Roman names, Albert Furtwangler contends that "'Publius' was a cut above 'Caesar' or 'Brutus' or even 'Cato.' Publius Valerius was not a late defender of the republic but one of its founders. His more famous name, Publicola, meant 'friend of the people.'" It was not the first time Hamilton had used this pseudonym: in 1778, he had applied it to three letters attacking Samuel Chase.

Publicola, a legendary figure from the dawn of the Roman republic, helped drive out the last of the kings and later sponsored a law that permitted the murder of anyone who tried to become king. Here's Plutarch:

But although in these particulars [Publicola] showed himself a popular and moderate lawgiver, in the case of an immoderate offence he made the penalty severe. For he enacted a law by which any one who sought to make himself tyrant might be slain without trial, and the slayer should be free from blood-guiltiness if he produced proofs of the crime. For although it is impossible for one who attempts so great a task to escape all notice, it is not impossible for him to do so long enough to make himself too powerful to be brought to trial, which trial his very crime precludes. He therefore gave any one who was able to do so the privilege of anticipating the culprit's trial.

But, if the story is true, I can't help wondering whether Hamilton settled on the name because he enjoyed the delicious irony that the most famous tale about Publicola revealed the inherently irrational nature of an insufficiently controlled populace.

As the story goes, having established his devotion to republicanism beyond any possible doubt, Publicola built a house on a height above Rome called the "Velia". The Roman public promptly drew the bizarre conclusion that Publicola was going to use the house as base from which to establish himself as king. Here's Livy:

After the battle had gone in this way [a battle in which Publicola had led a Roman army which defeated an Etruscan attempt to reinstate the last king], so great a panic seized Tarquin and the Etruscans that the two armies of Veii and Tarquinii, on the approach of night, despairing of success, left the field and departed for their homes. . . .

At all events the Romans left the field as victors; the Etruscans regarded themselves as vanquished, for when daylight appeared not a single enemy was in sight. P. Valerius [Publicola], the consul, collected the spoils and returned in triumph to Rome. He celebrated his colleague's obsequies with all the pomp possible in those days, but far greater honour was done to the dead by the universal mourning, which was rendered specially noteworthy by the fact that the matrons were a whole year in mourning for him, because he had been such a determined avenger of violated chastity.

After this the surviving consul, who had been in such favour with the multitude, found himself - such is its fickleness - not only unpopular but an object of suspicion, and that of a very grave character. It was rumoured that he was aiming at monarchy, for he had held no election to fill [Lucius Junius] Brutus' place [Brutus had been killed in the battle], and he was building a house on the top of the Velia, an impregnable fortress was being constructed on that high and strong position.

The consul felt hurt at finding these rumours so widely believed, and summoned the people to an assembly. As he entered the "fasces" were lowered, to the great delight of the multitude, who understood that it was to them that they were lowered as an open avowal that the dignity and might of the people were greater than those of the consul. Then, after securing silence, he began to eulogise the good fortune of his colleague [Brutus] who had met his death, as a liberator of his country, possessing the highest honour it could bestow, fighting for the commonwealth, whilst his glory was as yet undimmed by jealousy and distrust. Whereas he himself had outlived his glory and fallen on days of suspicion and opprobrium; from being a liberator of his country he had sunk to the level of the Aquilii and Vitellii.

"Will you," he cried, "never deem any man's merit so assured that it cannot be tainted by suspicion? Am I, the most determined foe to kings, to dread the suspicion of desiring to be one myself? Even if I were dwelling in the Citadel on the Capitol, am I to believe it possible that I should be feared by my fellow-citizens? Does my reputation amongst you hang on so slight a thread? Does your confidence rest upon such a weak foundation that it is of greater moment where I am than who I am? The house of Publius Valerius shall be no check upon your freedom, your Velia shall be safe. I will not only move my house to level ground, but I will move it to the bottom of the hill that you may dwell above the citizen whom you suspect. Let those dwell on the Velia who are regarded as truer friends of liberty than Publius Valerius."

All the materials were forthwith carried below the Velia and his house was built at the very bottom of the hill where now stands the temple of Vica Pota.

And here's Plutarch:

But that which the rather displeased and offended the people in Valerius was this. Brutus, whom they regarded as the father of their liberties, would not consent to rule alone, but once and again chose a colleague to rule with him. "But this Valerius," they said, "in concentrating all power upon himself, is not a successor to the consulate of Brutus, to which he has no right, but to the tyranny of Tarquin. Yet why should he extol Brutus in words, while in deeds he imitates Tarquin, descending to the forum alone, escorted by all the rods and axes together, from a house no less stately than the royal house which he demolished?"

For, as a matter of fact, Valerius was living in a very splendid house on the so‑called Velia. It hung high over the forum, commanded a view of all that passed there, and was surrounded by steeps and hard to get at, so that when he came down from it the spectacle was a lofty one, and the pomp of his procession worthy of a king.

Accordingly, Valerius showed what a good thing it is for men in power and high station to have ears which are open to frankness and truth instead of flattery. For when he heard from his friends, who spared him no detail, that he was thought by the multitude to be transgressing, he was not obstinate nor exasperated, but quickly got together a large force of workmen, and while it was still night tore the house down, and razed it all to the ground.

In the morning, therefore, the Romans saw what had happened, and came flocking together. They were moved to love and admiration by the man's magnanimity, but were distressed for the house, and mourned for its stately beauty, as if it had been human, now that envy had unjustly compassed its destruction. They were also distressed for their ruler, who, like a homeless man, was now sharing the homes of others. For Valerius was received into the houses of his friends until the people gave him a site and built him a house, of more modest dimensions than the one he had lived in before, where now stands the temple of Vica Pota, so‑called.

Wishing now to make not only himself but also the government, instead of formidable, submissive and agreeable to the multitude, he removed the axes from the lictors' rods, and when he came into the assembly, inclined and lowered the rods themselves to the people, emphasizing the majesty of the democracy. This custom the consuls observe to this day. And before the multitude were aware of it, he had succeeded, not by humbling himself, as they thought, but by checking and removing their envious feelings through such moderation on his part, in adding to his real influence over them just as much as he had seemed to take away from his authority, and the people submitted to him with pleasure and bore his yoke willingly.

They therefore called him Publicola, a name which signifies people-cherisher. This name prevailed over the older names which he had borne, and it is the name which I shall use for him in the remainder of this Life.

The Origins of the Three-Fifths Clause

The precursor to the Three-Fifths Clause originated as a proposed amendment to the revenue article of the Articles of Confederation.

As Merrill Jensen explains in The Articles of Confederation, the delegates who participated in the drafting of the Articles in 1776-1777 accepted that the apportionment of contributions to the “common Treasury” should be based on the wealth of the various states. To simplify a bit, they saw three possible approaches to quantifying an index of wealth: population, the value of land and improvements, and the value of all property (both real estate and personal).

The Dickinson draft of the Articles proposed to use the first method, based on population:

All Charges of Wars and all other Expences that shall be incurred for the common Defenee, or general Welfare, and allowed by the United States in General Congress assembled, shall be defrayed out of a common Treasury, which shall be supplied by the several Colonies in Proportion to the Number of Inhabitants of every Age, Sex and Quality, except Indians not paying Taxes, in each Colony, a true Account of which, distinguishing the white Inhabitants who are not slaves, shall be triennially taken and transmitted to Congress the Assembly of the United States. The Taxes for paying that Proportion shall be laid and levied by the Authority and Direction of the Legislatures of the several Colonies, within the Time agreed upon by United States assembled.

This raised cries of protest from the south. The core southern concern was the belief that they would pay more than their fair share if slaves were counted. In brief, southerners argued that, if population were to be used an index of wealth, slaves should be excluded because they were less productive than free labor. Southerners maintained that the most accurate indicator of wealth was not population at all, but the value of land and improvements.

New Englanders took the opposite view. In New England land was scare and dear, and New Englanders feared that an allocation based on real property values would result in their paying too much. They argued that total population – including slaves - should be used as the index.

In the end, New England lost the battle. The final version of Article VIII of the Articles abandoned population and provided instead that the states would pay for expenses incurred by Congress “in proportion to the value of all land within each State”:

All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

In practice, this proved impossible. As late as Thursday February 6, 1783 Congress was still trying to figure out “the most effectual mode of estimating the value of the lands in the United States for the purpose mentioned in the Articles of Confederation.”

As Jan Lewis explains in her essay “The Three-Fifths Clause and the Origins of Sectionalism” (found in Congress and the Emergence of Sectionalism: From the Missouri Compromise to the Age of Jackson [Paul Finkelman and Donald R. Kennon, eds.]), casting about for an alternative, in 1783 Congress revisited the possibility of substituting population for land values as a surrogate for wealth. But, as before, using population promptly implicated the question of slavery: were slaves to be counted in the population, or would the count be limited to free persons?

As before, the positions of the parties were based upon self-interest; but the arguments pro and con were based on assertions concerning the efficiency of slave labor vs. free labor. Because the sole question was the amount of contributions to the common treasury – and not representation – southerners again sought to exclude slaves, arguing that slave labor was substantially less efficient than free labor and should not be counted. Northern representatives, seeking to increase the amount of contributions from slave states and reduce their own, again took the opposite position: slaves should be included because slave labor was just as efficient as free labor.

By way of compromise, two basic approaches were suggested. One approach discounted slave labor by crediting only a certain percentage of slaves toward population (e.g., one-quarter, one-half, three-quarters). The other would include in the the counting only slaves between certain ages, on the theory that slaves below and above those ages were unproductive.

On Thursday March 6, 1783, the Confederation Congress received a "Report of Mr. Nathaniel Gorham, Mr. Alexander Hamilton, Mr. James Madison, Mr. Thomas FitzSimons, [and] Mr. John Rutledge appointed to consider the means of restoring and supporting public credit and for obtaining from the States substantial funds for funding the whole debt of the United States.” The Committee's Report included a recommendation using the second approach, using population as a proxy for wealth, but excluding slaves of ages to be determined:

That as a more convenient and certain rule of fixing ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between the states, be and the same is hereby agreed to in Congress; and the several states are advised, to authorize their respective delegates to subscribe and ratify the same, as part of the said instrument of union, in the words following, to wit:

So much of the eighth of the Articles of Confederation and perpetual union between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war,” &c., (to the end of the paragraph), is hereby revoked and made void; and in place thereof, it is declared and concluded, the same having been agreed to in a Congress of the United States, that all charges of war and [all other expences that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states,] in proportion to the number of inhabitants, of every age, sex, and condition, except Indians not paying taxes in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint; provided always, that in such numeration no persons shall be included who are deemed slaves bound to servitude for life, according to the laws of the State to which they belong, other than such as may be between the ages of [___].”

Congress rejected this approach, however, and turned back to the first approach, by which some portion of the slave population would be counted as a proxy for wealth. After a good deal of haggling, an arbitrary compromise was worked out: on the theory that slave labor was 60% as efficient as free labor, three-fifths of the slave population would be counted. This compromise was contained in a revised Report of the Committee presented to the Continental Congress on Tuesday March 18, 1783:

That as a more convenient and certain rule of ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between these states, be, and the several states are advised to authorize their respective delegates to subscribe and ratify the same as part of the said instrument of union in the words following, to wit:

So much of the eighth of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit.

“All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States that, “All charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress Assembled, except so far as shall be otherwise provided for, shall be defrayed out of a common treasury which shall be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants of every age, sex and condition, including those bound to servitude for a term of years and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes in each State, which numbers shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

Apparently disagreement continued over the percentage of slaves to be included. The Journal entry for Friday March 28, 1783 suggests that proportions of “one-half” and “two-thirds” were also being advocated, and in fact the entire paragraph was stricken.

By April 1, however, the provision – including the proportion of three-fifths, was reinstated.

In the end the three-fifths ratio carried the day. On Friday April 18, 1783, the Continental Congress passed the proposed amendment in a form substantially identical to that quoted above:

That as a more convenient and certain rule of ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between these states be, and the same is hereby agreed to in Congress; and the several states are advised to authorise their respective delegates to subscribe and ratify the same as part of the said instrument of union in the words following, to wit:

So much of the 8th of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States, that “all charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, except so far as shall be otherwise provided for, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

The final vote was non-sectional, with nine states in favor and only one (Rhode Island, of course) against. New York's vote was divided. New Hampshire's sole delegate voted in favor, but his vote was disregarded because Article V required that a state delegation consist of at least two members.

The proposed amendment to the Articles was never ratified. Article 13 required that no “alteration” could be made to the Articles “unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

The proposed amendment concerned only allocation of contributions and had nothing to do with representation. Nonetheless, when four years later the members of the Philadelphia Convention came to consider population as basis for allocation of representatives in the “National Legislature”, the precedent naturally and immediately came to mind.

Thanks to CWhig, whose recent post on the Three-Fifths Clause alerted me to Prof. Lewis's essay and the book in which it appears. Can't say I buy his theory on the Framers' intent, though.

Conditional Ratification VII: "The terms of the Constitution import a perpetual compact between the different states"

Several years ago I wrote a series of posts on the New York convention that ratified the United States Constitution at the end of July 1788. Very briefly, some members of the anti-Federalist majority had indicated a willingness to consent to ratification provided that a federal convention was held within a period of years thereafter to consider amendments. On Saturday July 19, 1788 a desperate Alexander Hamilton wrote from the convention in Poughkeepsie to James Madison, then in New York City, asking whether, as a last resort, the proponents of the Constitution could agree to such a conditional ratification:

I thank you My Dear Sir for yours by the post. Yesterday I communicated to [William] Duer our situation which I presume he will have communicated to you. It remains exactly the same, no further question having been taken. I fear the footing mentioned in my letter to Duer is the best upon which it can be placed; but every thing possible will yet be attempted to bring the party from that stand to an unqualified ratification.

Let me know your idea of the possibility of our being received on that plan. You will understand that the only qualification will be the reservation of a right to recede in case our amendments have not been decided upon in one of the modes pointed out in the Constitution within a certain number of years, perhaps five or seven.

If this can in the first instance be admitted as a ratification I do not fear any further consequences. Congress will I presume recommend certain amendments to render the structure of the government more secure. This will satisfy the more considerate and honest opposers of the constitution, and with the aid of time will break up the party.

Madison responded immediately: absolutely not:

N. York Sunday Evening [July 20, 1788]

My dear Sir

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe.

My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan.

Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the new Congress by virtue of the power to admit new States, may be able & disposed to do in such a case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more. Know my fervent wishes for your success & happiness.

Js: Madison

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

In my earlier posts, I explained that secondary sources reported that Hamilton had read Madison's letter to the convention in support of his argument that conditional ratification was ineffective. I am adding this post because I have now found online the contemporaneous report of that event.

On Wednesday July 23, 1788 the New York convention had by a narrow margin (31-29) deleted the phrase “Upon Condition” and substituted “in full Confidence.” On Thursday July 24, 1788, however, John Lansing moved an amendment that would have re-introduced a form of conditional ratification. Lansing proposed to adopt the Constitution “with right to withdraw in [blank] years if the amend[ment]s [proposed by the New York convention] are not submitted to a convention in the mode prescribed &tc.”

Hamilton spoke in opposition to Lansing's motion. Quoting from Madison's letter to him, Hamilton opined that the Constitution implied "a perpetual compact between the different states" and that the proposed ratification would therefore be ineffective:

Ham[ilton] – Was in hopes this Morning of Unanimity when this Motion was first mentioned. Thot more favourably of it than the other one but since thinks otherwise. Has taken advice with men of character – they think it will not due. Proposed to read a Letter – reads it – supposes this adoption – conditional – and would viciate the business &tc. Himself wrote favourably for it. The terms of the Constitution import a perpetual compact between the different states; this certainly is not. Treaties and engagements with foreign nations are perpetual – this cannot be under this adoption. The oath to be taken stands in the way. States & men are averse to inequality. They fully bound and we partially. Should we risk so much on so little? Motives of expediency too much relied on. If they do not accept us will they not sooner have a new convenn [sic] than accept us so. Is it worth the jeopardy by which it must be obtained? Is it not of importance that we join immediately to procure a convenn? The obser[vatio]n of Lans[in]g does not meet the objec[tio]n – as they will contemplate wheather [sic] this is a ratific[atio]n. If they have any doubt, they will ap[poin]t Cong[res]s to meet on certain federal ground [and not in New York]. Interest of some states against us. If they are driven away by us the people will be dissatisfied &tc. We have done everything which possibly can insure our wish – this we shall loose [sic] by a second state convention. We shall not be represented in Congress & this for no real end. Moves to have the question postponed & that a circular letter be wrote.

On July 28, 1788 the New York Daily Advertiser published the following account of the New York convention debates on July 24, 1788:

Yesterday [July 24] Mr. Lansing moved to annex Mr. [Melancton] Smith's last proposition to the ratification, or the one which proposes to adopt with a reservation of a right to withdraw; then Mr. [John] Jay, and after him Mr. Hamilton, rose and declared that the reservation could answer no good purpose in itself – that it implied a distrust of the other States – that it would awaken their pride and other passions unfriendly to the object of amendments; but what was decisive against it, it was inconsistent with the Constitution, and was no ratification.

Mr. Hamilton produced and read part of a letter from a gentleman of high public distinction, containing in explicit terms his opinion that the reservation would amount to a conditional ratification, and would not be received by Congress. Mr. [James] Duane and the Chancellor [Robert R. Livingston] both declared their opinion to the same effect, and they all concurred in expressing an anxious wish, that since the House had proceeded so far to an accomodation, they might now conclude the business with harmony and to the satisfaction of both parties. Mr. Smith remained silent all the day; the questions was postponed till to-day.

Earlier posts on the New York Ratification Convention:

Part I

Part II

Part III

Part IV

Part V

Part VI

About the illustration, entitled The Looking Glass for 1787. A house divided against itself cannot stand. Mat. Chap. 13th verse 26, created by Amos Doolittle, published New Haven, CT 1787:

A satire touching on some of the major issues in Connecticut politics on the eve of the ratification of the U.S. Constitution. The two rival factions shown are the "Federals," who represented the trading interests and were for taxes on imports, and the "Antifederals," who represented agrarian interests and were more receptive to paper money issues. The two groups were also divided on the issue of commutation of military pensions. The artist here evidently sides with the Federals. Connecticut is symbolized by a wagon (top center) loaded with debts and paper money, the weight of which causes it to sink slowly into the mud. Its driver warns, "Gentlemen this Machine is deep in the mire and you are divided as to its releaf--" The wagon is pulled in opposite directions by two factions of the state's Council of Twelve. On the left under a beaming sun are five Federal councillors, who proclaim: "Pay Commutation," "Drive them to it," "I abhor the antifederal Faction," and "Comply with Congress." On the right the sky fills with angry storm clouds spewing thunderbolts, while the earth erupts in flames. Below six of the council's Antifederal members pull on their chain crying: "Tax Luxury," "the People are oprest," "curses on to Foederal Govermt.," "Success to Shays" (an allusion to charges that they sympathized with agrarian radicals led by Daniel Shay in Massachusetts), and "Curse Independence." The seventh Antifederal on the council, William Williams (here labeled with his press pseudonym "Agricola"), also appears. He stands defecating at right, with his trousers undone and a small animal--probably a skunk--between his feet. Williams remarks, "I fear & dread the Ides of May" (i.e. the May 15 elections to the upper house). The skunk sprays toward Williams's enemy Samuel Holden Parsons (far right, identified as "S--H--P"), president of the state's Society of the Cincinnati. Parsons, also obscenely bending over, sprays back saying, "A good Shot." In the left middleground, "Cato," a pseudonymous contributor to the "New Haven Gazette," comments, "I despise your Copper" to the man beside him, who holds a Connecticut coin and mutters, "Cur's commutation." In the center a farmer with a plough, rake, and bottle complains, "Takes all to pay taxes." In the left foreground three members of the Connecticut Wits stand on the Mount "Parnassus," and read from a scroll "American Antiquities" (excerpts from their "Anarchiad" published in Connecticut newspapers beginning in October 1786). To the right is the Connecticut shoreline and the buildings of Manhattan, the latter threatened by thunderbolts from the upper right. Three merchant vessels ply a body of water below, "From Connecticut to New York paying L40000 per annum Impost." In the left corner a tiny figure sits at a w7riting desk, reading a paper with the verse: "Tweedles Studdy/as I sit plodding by my taper." This piece alludes to a satirical poem by "Trustless Fox" in the "New Haven Gazette" of November 23, 1786. Its opening lines are: "As I sat plodding by my taper, I wreaked a glance into the paper . . . ." The interpretation given above is largely based on the commentary of a Sotheby's cataloger (see reference below). That writer suggests that "Trustless Fox" and the designer of "The Looking Glass for 1787" may have been one and the same, based on the references to material in the New Haven Press.

James Madison vs. Alexander Hamilton

Google's new Ngram Viewer for plotting the frequency of the use of selected words and phrases over time has been getting a fair amount of play. For fun, I plotted the frequency of "James Madison" and "Alexander Hamilton" to see how those two founders have fared over the years. The results appear above. Not sure what they mean, though.

"We forgot"

You don't often think of Alexander Hamilton as a funny guy, but Gordon S. Wood makes me wish I could have a drink with him:

During the Revolutionary era Hamilton had shed his youthful religious inclinations and had become a conventional liberal with deistic inclinations who was an irregular churchgoer at best. People even told stories about his joking references to religion. During the Philadelphia Convention of 1787 [Benjamin] Franklin proposed to call in a minister each day to lead the delegates in prayers "to the Creator of the universe" in order to calm the rancor of the debates. Hamilton is supposed to have replied that the Convention did not need any "foreign aid." When Hamilton was later asked why the members of the Convention had not recognized God in the Constitution, he allegedly replied, "We forgot."

"It is not a vote!"

As you know, the nomination by the President of the United States of executive officers is subject to confirmation by the Senate. Article II, Section 2 provides in relevant part:

He [the president] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The converse, however, is not the case. Presidents routinely terminate executive officers (or pressure them into resigning) on their own authority. They do not seek or obtain the consent of the Senate to do so, and no one expects them to.

It is one of the strange facts of American constitutional history that the constitutionality of this practice is entirely unclear. In fact, the Constitution does not address whether executive removals require Senate consent or not. It might certainly be logical to suppose that the opposite result is correct: if Senate confirmation is required for appointment, then Senate confirmation for removal is likewise required. Ironically, this was precisely the position taken by that champion of executive power, Alexander Hamilton, in Federalist 77:

IT HAS been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

Current practice is sanctioned by historical precedent. The very first Congress faced and debated the question. Standard histories note with a good deal of irony that, in the House, it was Representative James Madison who spearheaded the forces that successfully argued that removal did not require Senate consent.

What I had not focused on, however, was the Senate itself, and how close the result was there. In Empire of Liberty: A History of the Early Republic, 1789-1815, Gordon S. Wood, citing the Journal of Senator William Maclay, points out that the vote was razor thin. Maclay reports that the Senate vote, held July 16, 1789, was a tie; Vice President John Adams then cast the deciding vote in favor of removal without Senate consent:

After all the arguments were ended and the question taken the Senate was ten to ten, and the Vice-President with joy cried out, “It is not a vote!” without giving himself time to declare the division of the House and give his vote in order.

Prof. Wood comments:

The consequences of such a close vote were immense: on it turned the future nature of the presidency. Indeed, as Madison noted in the House, the Congress's decisions on this issue of removal “will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius will depend the genius and character of the whole government.” If the Senate had been able to claim the right of approving the removal of presidential appointees, executive officials would have become dependent on the will of the Senate, and the United States would have created something similar to the English system of cabinet responsibility to Parliament.

For an article arguing that Hamilton's reference to "displace[ment]" was not intended to encompass mere "removal", see here. A response has recently appeared, which I have not yet read:: Jeremy D. Bailey, The Traditional View of Hamilton's Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman.

Two Articles

These two articles look interesting:

Seth Barrett Tillman, The Puzzle of Hamilton's Federalist No. 77: It Turns out that Hamilton was Right After All:

The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. There is nothing new about that insight. But one alleged error has always struck me as somewhat different from other alleged errors. I am speaking of Hamilton's 1788 publication: The Federalist No. 77. There he wrote:

IT HAS BEEN MENTIONED as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

This is the enigmatic great white whale among Founding-era documents.

Partisans of Senate (or congressional power) agree with Hamilton (or, at least, they think they agree with Hamilton). These commentators look back to the Tenure in Office Act and to any number of statements made on the floor of the House when statutory removal was first debated in 1789 -- all purportedly consistent with Hamilton's statement here. Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They affirm that Hamilton erred. These commentators look to Myers v. United States and to statements made by Madison on the floor of the House during the statutory removal debates. The consensus view, nay - the universal view, is that Hamilton was speaking to the issue of the "removal" of federal officers.

However, this understanding of The Federalist No. 77, the standard view, the view that Hamilton was speaking to "removal," creates as many problems as it might resolve. And this is true without regard to whether or not you think Hamilton correct or erred. First, the standard view is puzzlingly inconsistent with everything we know about Hamilton, the premier Founding-era spokesman for energy and unity in the Executive. How is it that he would concede a role for the Senate in regard to the removal of federal officers, if a contrary view were even remotely tenable? Second, Hamilton's opining on the scope of the removal power is inconsistent with his plan for and the purpose of The Federalist. His plan for The Federalist was to discuss the defects of the then-current regime, the government under the Articles, the need for a more energetic government, and finally, to provide an article-by-article, clause-by-clause defense of the newly proposed Constitution of 1787 as consistent with the principles of Republican government, liberty, and property. Removal is simply not expressly addressed in the Constitution. To bring up "removal" is just bad tactics - why open up that can of worms, particularly where one's conclusion lacks direct textual support or any closely reasoned argument. Was Hamilton really such a poorly skilled tactician and propagandist? There is a third problem with the standard view .... This problem is not historical, but textual. If you read Hamilton's statement, you will notice that he does not actually use the word "removal" or any variant on "removal." Rather, he uses the word "displace." And that is the key to this ancient intellectual puzzle. Hamilton was not speaking to the power of removing federal officers, rather he was speaking to who had authority to displace federal officers. The two words are akin, but they are not at all times and for all purposes the same.

Lawrence B. Solum, Incorporation and Originalist Theory:

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

Did Alexander Hamilton Concede that Canals "were beyond the sphere of Federal legislation"?

In his wonderful The Last of the Fathers: James Madison & the Republican Legacy, Drew R. McCoy discusses James Madison's continuing conviction that the Constitution did not authorize the federal government to construct internal improvements, as they were then known. I was particularly intrigued by the following sentence:

[In a January 6, 1831 letter to Reynolds Chapman,] Madison recalled that even [Alexander] Hamilton, in his 1790 report on the Bank, had conceded that canals "were beyond the sphere of Federal legislation."

I had not heard before that Hamilton – supposedly the epitome of broad constitutional construction – had made such a concession. It struck me that, if he had, it was a powerful piece of evidence concerning the original understanding of the meaning of the document.

When I looked at Hamilton’s December 1790 report on the Bank, however, I could find no such discussion of canals. But then I wondered whether Madison had misremembered the source.

You probably know that President Washington invited members of his cabinet to submit to him memoranda explaining why they maintained that the proposed Bank legislation was or was not constitutional. Secretary of State Thomas Jefferson and Attorney General Edmund Randolph submitted memoranda arguing the negative. Hamilton then submitted a memorandum in support of constitutionality, which ultimately convinced the president to sign the legislation. Might Madison, I wondered, have been thinking of Hamilton’s 1791 memo?

Well, it turns out that Madison almost certainly was referring to that memo, because it does indeed contain a discussion that touches on the constitutionality of canals (emphasis added):

Another argument made use of by the Secretary of State [Jefferson] is, the rejection of a proposition by the Convention to empower Congress to make corporations, either generally, or for some special purpose.

What was the precise nature or extent of this proposition, or what the reasons for refusing it, is not ascertained by any authentic document, or even by accurate recollection. As far as any such document exists, it specifies only canals. If this was the amount of it, it would, at most, only prove that it was thought inexpedient to give a power to incorporate for the purpose of opening canals, for which purpose a special power would have been necessary, except with regard to the western territory, there being nothing in any part of the Constitution respecting the regulation of canals. It must be confessed, however, that very different accounts are given of the import of the proposition, and of the motives for rejecting it. Some affirm, that it was confined to the opening of canals and obstructions in rivers, others, that it embraced banks; and others, that it extended to the power of incorporating generally. Some, again, allege, that it was disagreed to because it was thought improper to vest in Congress a power of erecting corporations. Others, because it was thought unnecessary to specify the power, and inexpedient to furnish an additional topic of objection to the Constitution. In this state of the matter, no inference whatever can be drawn from it.

But whatever may have been the nature of the proposition, or the reasons for rejecting it, nothing is included by it, that is the proposition, in respect to the real merits of the question. The Secretary of State will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. Nothing is more common than for laws to express and elect more or less than was intended. If, then, a power to erect a corporation in any case be deducible, by fair inference, from the whole or any part of the numerous provisions of the Constitution of the United States arguments drawn from extrinsic circumstances regarding the in tension of the Convention must be rejected.

I’m not at all sure what to make of Hamilton’s statement. Madison had clearly latched on to the phrase, “there being nothing in any part of the Constitution respecting the regulation of canals,” as an unambiguous concession, and he has a point. On the other hand, in the context of the Hamilton’s overall argument, the canal point is subsidiary to the point of being a throw-away.

About the illustration, which dates to 1812:

A patriotic broadside illustrated with emblems of the United States composed chiefly of typographic elements. A large central framework incorporates a small "Temple of Freedom" surmounted by a small Liberty figure, and containing the words "The Federal Constitution." On each side are oval bust portraits of Presidents (left to right) Washington, Adams, Jefferson, and Madison. Above them are small vignettes representing (on the left) Agriculture and Domestic Manufactures, the "immoveable pillars of the Independence of our country," and (on the right) Commerce, "a strong support to our national edifice." In the upper section of the framework are the seal of the United States and a listing of the names of the seventeen states with their 1810 census figures. Various quotations and brief texts are included, the longest of which are an account of George Washington's resignation of his commission, a description of the geography, government, and people of the United States, and the song "Columbia" written by "Dr. Dwight, President of Yale College."

Boola Boola!

A Thought on the James Madison Problem

The best attempt to reconcile the federalist and Jeffersonian James Madison is Gordon Wood’s Is There a “James Madison Problem”? Unfortunately, that effort is only a fairly brief essay. The devil, however, is in the details. Consider, for example, the following from Ralph Ketcham’s biography:

In drafting the full financial plan submitted to [the Continental] Congress on March 6, 1783, Madison also included a provision that the debts of the states resulting from the “reasonable expenses” of war should in justice and equity be assumed by the general government.

Why, then, did Madison go crazy when Alexander Hamilton introduced just such an assumption of state debts plan seven years later?

On the other hand, I find another claimed inconsistency less compelling – or at least Ketcham’s description is confusing. Ketcham states:

In a plea that would haunt him seven years later, when he opposed Hamilton’s plan for funding the public debt, [Madison] rejected any discrimination between the various kinds of creditors; all had lent in good faith and any distinctions would be “equally unnecessary and invidious.”

It’s the “all had lent in good faith” language that has me confused. As I understand it, Madison did not object to Hamilton’s plan because it treated all original lenders equally. The heart of his objection was that the federal government should discriminate between original “lenders” and second-generation holders who had subsequently purchased notes and debts for less than their face amount.

Conditional Ratification VI

So how did Alexander Hamilton and his federalist allies defeat conditional ratification at the New York convention? As I noted in my previous post, Elliot’s Debates sheds no light.

The only contemporaneous primary source I have been able to find online – a July 22, 1788 letter from Hamilton to Madison – suggests that internal disagreements among New York antifederalists were weakening them:

I wrote to you by the last post [Hamilton’s July 19 letter?], since which nothing material has turned up here. We are debating on amendments without having decided what is to be done with them. There is so great a diversity in the views of our opponents that it is impossible to predict any thing. Upon the whole, however, our fears diminish.

The only secondary source I have run across that discusses the issue is Akhil Amar’s America’s Constitution: A Biography. There, Professor Amar tells a dramatic story.

Professor Amar asserts that Hamilton opposed John Lansing’s July 24 conditional ratification motion by reading James Madison’s July 19, 1788 “in toto and for ever” letter to the convention and arguing based on it that conditional ratification was no ratification at all:

In [his July 19] letter to Hamilton, Madison had emphasized that “the Constitution requires an adoption in toto and for ever . . ..” [In opposition to the Lansing conditional ratification motion,] Hamilton read the letter aloud to the Convention and then added his own words. The “terms of the constitution import a perpetual compact between the different states. . . . The [Article VI] oath to be taken stands in the way” of any subsequent right of unilateral secession. According to the contemporaneous account published in New York’s Daily Advertiser, both Hamilton and his fellow delegate John Jay insisted that “a reservation of right to withdraw . . . was inconsistent with the Constitution, and was no ratification.”

(A shortened version is available online here.)

It is frustrating that I have been unable to locate online the underlying primary sources that Professor Amar cites. For those of you who have access to a research library (or better online researching skills than I), here are the supporting references:

For Hamilton on the “perpetual compact:” “New York Ratifying Convention, First Speech of July 24,” in Hamilton, Papers, 5:193-95 (Harold C. Syrett, ed.). See also John P. Kaminsky, “New York: The Reluctant Pillar,” in Stephen L. Schechter, ed., The Reluctant Pillar: New York and the Adoption of the Federal Constitution (1985), 112; Kenneth M. Stampp, “The Concept of a Perpetual Union,” J. of Am. Hist. 65 (1978): 18 n. 51.

For Hamilton and Jay’s repudiation of a “right to withdraw:” Excerpt from The Daily Advertiser, July 28, 1788, in Hamilton, Papers, 5:194-95.

Searching around, I also see this article, which looks very interesting: Robin Brooks, “Alexander Hamilton, Melancton Smith, and the Ratification of the Constitution in New York,” The William & Mary Quarterly, 3rd Ser., Vol. 24, No. 3 (July 1967), pp. 339-58.