Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Origin and Adoption of the Constitution
§ 272. IN this state of things, commissioners were appointed by the legislatures of Virginia and Maryland early in 1785, to form a compact relative to the navigation of the rivers Potomac and Pocomoke, and the Chesapeake Bay. The commissioners having met in March, in that year, felt the want of more enlarged powers, and particularly of powers to provide for a local naval force, and a tariff of duties upon imports. Upon receiving their recommendation, the legislature of Virginia passed a resolution for laying the subject of a tariff before all the states composing the Union. Soon afterwards, in January, 1786, the legislature adopted another resolution, appointing commissioners, “who were to meet such, as might be appointed by the other states in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the states; to consider how far a uniform system in their commercial relations may be necessary to their common interest, and their permanent harmony; and to report to the several states such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in congress assembled to provide for the same.”1
§ 273. These resolutions were communicated to the states, and a convention of commissioners from five states only, viz. New York, New Jersey, Pennsylvania, Delaware, and Virginia, met at Annapolis in September, 1786.2 After discussing the subject, they deemed more ample powers necessary, and as well from this consideration, as because a small number only of the states was represented, they agreed to come to no decision, but to frame a report to be laid before the several states, as well as before congress.3 In this report they recommended the appointment of commissioners from all the states, “to meet at Philadelphia, on the second Monday of May, then next, to take into consideration the situation of the United States; to devise such further provisions, as shall appear to them necessary, to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same.”4
§ 274. On receiving this report, the legislature of Virginia passed an act for the appointment of delegates to meet such, as might be appointed by other states, at Philadelphia.5 The report was also received in congress. But no step was taken, until the legislature of New York instructed its delegation in congress to move a resolution, recommending to the several states to appoint deputies to meet in convention for the purpose of revising and proposing amendments to the federal constitution.6 On the 21st of February, 1787, a resolution was accordingly moved and carried in congress, recommending a convention to meet in Philadelphia, on the second Monday of May ensuing, “for the 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.”7 The alarming insurrection then existing in Massachusetts, without doubt, had no small share in producing this result. The report of congress, on that subject, at once demonstrates their fears, and their political weakness.8
§ 275. At the time and place appointed, the representatives of twelve states assembled. Rhode-Island alone declined to appoint any on this momentous occasion. After very protracted deliberations, the convention finally adopted the plan of the present constitution on the 17th of September, 1787; and by a contemporaneous resolution, directed it to be “laid before the United States in congress assembled,” and declared their opinion, “that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under a recommendation of its legislature for their assent and ratification;”9 and that each convention, assenting to and ratifying the same, should give notice thereof to congress. The convention, by a further resolution, declared their opinion, that as soon as nine states had ratified the constitution, congress should fix a day, on which electors should be appointed by the states, which should have ratified the same, and a day, on which the electors should assemble and vote for the president, and the time and place of commencing proceedings under the constitution; and that after such publication, the electors should be appointed, and the senators and representatives elected. The same resolution contained further recommendations for the purpose of carrying the constitution into effect.
§ 276. The convention, at the same time, addressed a letter to congress, expounding their reasons for their acts, from which the following extract cannot but be interesting. “It is obviously impracticable (says the address) in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals, entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend, as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights, which must be surrendered, and those, which may be reserved; and on the present occasion this difficulty was increased by difference among the several states, as to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that, which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the convention to be less rigid on points of inferior magnitude, than might have been otherwise expected. And thus the constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.”10
§ 277. Congress, having received the report of the convention on the 28th of September, 1787, unanimously resolved, “that the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof, in conformity to the resolves of the convention, made and provided in that case.”11
§ 278. Conventions in the various states, which had been represented in the general convention, were accordingly called by their respective legislatures; and the constitution having been ratified by eleven out of the twelve states, congress, on the 13th of September, 1788,12 passed a resolution appointing the first Wednesday in January following, for the choice of electors of president; the first Wednesday of February following, for the assembling of the electors to vote for a president; and the first Wednesday of March following, at the then seat of congress [New York] the time and place for commencing proceedings under the constitution. Electors were accordingly appointed in the several states who met and gave their votes for a president; and the other elections for senators and representatives having, been duly made, on Wednesday, the 4th of March, 1789, congress assembled under the new constitution, and commenced proceedings under it. A quorum of both houses, however, did not assemble until the 6th of April, when the votes for president being counted, it was found that George Washington was unanimously elected president, and John Adams was elected vice president.13 On the 30th of April, president Washington was sworn into office, and the government then went into full operation in all its departments.
§ 279. North Carolina had not, as yet, ratified the constitution. The first convention called in that state, in August, 1788, refused to ratify it without some previous amendments, and a declaration of rights. In a second convention, however, called in November, 1789, this state adopted the constitution.14 The state of Rhode-Island had declined to call a convention; but finally, by a convention held in May, 1790, its assent was obtained; and thus all the thirteen original states became parties to the new government.15
§ 280. Thus was achieved another, and still more glorious triumph in the cause of national liberty, than even that, which separated us from the mother country. By it we fondly trust, that our republican institutions will grow up, and be nurtured into more mature strength and vigour; our independence be secured against foreign usurpation and aggression; our domestic blessings be widely diffused, and generally felt; and our union, as a people, be perpetuated, as our own truest glory and support, and as a proud example of a wise and beneficent government, entitled to the respect, if not to the admiration of mankind.
1. 5 Marsh. Life of Wash. 90, 91; 1 Kent’s Comm. 203.
2. 1 Amer. Museum, 267; 2 Pitk. Hist. 218.
3. 5 Marsh. Life of Wash. 267; 2 Pitk. Hist. 218; 1 U. S. Laws, (Bioren & Duane’s edit. 1815,) p 55, etc. to 58.
4. 1 Amer. Museum, 267, 268.
5. Marsh. Life of Wash. 98.
6. It was carried in the senate of the state by a majority of one only. 5 Marsh. Life of Wash. 125.
7. 2 Pitk. Hist. 219; 5 Marsh. Life of Wash. 124, 125; 12 Journ. of Congress, 12, 13, 14; 2 Pitk. Hist. 219, 220, 222.
8. 2 Pitk. Hist. 220, 221; Journ. of Congress, Oct. 1786; 1 Secret Journ. 268. 4 5 Marsh. Life of Wash. 128.
9. 5 Marsh. Life of Washington, 128, 129; Journ. of Convention, 370; 12 Journ. of Congress, 109; 2 Pitk. Hist. 224, 264.
10. 12 Journ. of Congress, 109, 110; Journ. of Convention, 367, 368; 5 Marsh. Life of Wash. 129.
11. 5 Marsh. Life of Wash. 128; 12 Journ. of Congress, 99, 110; Journ. of Convention, App. 391.
12. Journ. of Convention, App. 449, 450, 451; 2 Pitk. Hist. 291.
13. 5 Marsh. Life of Wash. 133, 151, 152; 2 Pitk. Hist. 317, 318; 1 Lloyd’s Debates, 3, 4, 5, 6.
14. 2 Pitk. Hist. 283; Journ. of Convention, App. 452; 1 Kent’s Comm. 204, 205.
15. 2 Pitk. Hist. 265; Journ. of Convention, App. 452, 458.