The Debates in the
Federal Convention of 1787
On a reconsideration of the clause giving the Natl. Legislature a negative
on such laws of the States as might be contrary to the articles of Union, or
Treaties with foreign nations,
Mr. PINKNEY moved "that the
National Legislature shd. have authority to negative all laws which they shd.
judge to be improper." He urged that such a universality of the power was
indispensably necessary to render it effectual; that the States must be kept in
due subordination to the nation; that if the States were left to act of
themselves in any case, it wd. be impossible to defend the national
prerogatives, however extensive they might be on paper; that the acts of
Congress had been defeated by this means; nor had foreign treaties escaped
repeated violations; that this universal negative was in fact the corner stone
of an efficient national Govt.; that under the British Govt. the negative of the
Crown had been found beneficial, and the States are more one nation now, than
the Colonies were then.
Mr. MADISON seconded the motion. He
could not but regard an indefinite power to negative legislative acts of the
States as absolutely necessary to a perfect system. Experience had evinced a
constant tendency in the States to encroach on the federal authority; to violate
national Treaties; to infringe the rights & interests of each other; to
oppress the weaker party within their respective jurisdictions. A negative was
the mildest expedient that could be devised for preventing these mischiefs. The
existence of such a check would prevent attempts to commit them. Should no such
precaution be engrafted, the only remedy wd. lie 1
in an appeal to coercion. Was such a remedy eligible? was it practicable? Could
the national resources, if exerted to the utmost enforce a national decree agst.
Massts. abetted perhaps by several of her neighbours? It wd. not be possible. A
small proportion of the Community, in a compact situation, acting on the
defensive, and at one of its extremities might at any time bid defiance to the
National authority. Any Govt. for the U. States formed on the supposed
practicability of using force agst. the unconstitutional proceedings of the
States, wd. prove as visionary & fallacious as the Govt. of Congs. The
negative wd. render the use of force unnecessary. The States cd. of themselves
then 2 pass no operative act, any more
than one branch of a Legislature where there are two branches, can proceed
without the other. But in order to give the negative this efficacy, it must
extend to all cases. A discrimination wd. only be a fresh source of contention
between the two authorities. In a word, to recur to the illustrations borrowed
from the planetary system. This prerogative of the General Govt. is the great
pervading principle that must controul the centrifugal tendency of the States;
which, without it, will continually fly out of their proper orbits and destroy
the order & harmony of the political System.
Mr. WILLIAMSON was agst. giving a power
that might restrain the States from regulating their internal police.
Mr. GERRY cd. not see the extent of such
a power, and was agst. every power that was not necessary. He thought a
remonstrance agst. unreasonable acts of the States wd. reclaim 3
them If it shd. not force might be resorted to. He had no objection to authorize
a negative to paper money and similar measures. When the confederation was
depending before Congress, Massachussetts was then for inserting the power of
emitting paper money amg. the exclusive powers of Congress. He observed that the
proposed negative wd. extend to the regulations of the Militia, a matter on
which the existence of a 4 State might
depend. The Natl. Legislature with such a power may enslave the States. Such an
idea as this will never be acceded to. It has never been suggested or conceived
among the people. No speculative projector, and there are eno' of that character
among us, in politics as well as in other things, has in any pamphlet or
newspaper thrown out the idea. The States too have different interests and are
ignorant of each other's interests. The negative therefore will be abused. New
States too having separate views from the old States will never come into the
Union. They may even be under some foreign influence; are they in such case to
participate in the negative on the will of the other States?
Mr. SHERMAN thought the cases in which
the negative ought to be exercised, might be defined. He wished the point might
not be decided till a trial at least shd. be made for that purpose.
Mr. WILSON would not say what
modifications of the proposed power might be practicable or expedient. But
however novel it might appear the principle of it when viewed with a close &
steady eye, is right. There is no instance in which the laws say that the
individual shd. be bound in one case, & at liberty to judge whether he will
obey or disobey in another. The cases are parallel. Abuses of the power over the
individual person may happen as well as over the individual States. Federal
liberty is to
5 States, what civil liberty, is to
private individuals. And States are not more unwilling to purchase it, by the
necessary concession of their political sovereignty, that 6
the savage is to purchase civil liberty by the surrender of his 7
personal sovereignty, which he enjoys in a State of nature. A definition of the
cases in which the Negative should be exercised, is impracticable. A discretion
must be left on one side or the other? will it not be most safely lodged on the
side of the Natl. Govt.? Among the first sentiments expressed in the first
Congs. one was that Virga. is no more, that Masts. is no 8,
that Pa. is no more &c. We are now one nation of brethren. We must bury all
local interests & distinctions. This language continued for some time. The
tables at length began to turn. No sooner were the State Govts. formed than
their jealousy & ambition began to display themselves. Each endeavoured to
cut a slice from the common loaf, to add to its own morsel, till at length the
confederation became frittered down to the impotent condition in which it now
stands. Review the progress of the articles of Confederation thro' Congress &
compare the first & last draught of it. To correct its vices is the business
of this convention. One of its vices is the want of an effectual controul in the
whole over its parts. What danger is there that the whole will unnecessarily
sacrifice a part? But reverse the case, and leave the whole at the mercy of each
part, and will not the general interest be continually sacrificed to local
Mr. DICKENSON deemed it impossible to
draw a line between the cases proper & improper for the exercise of the
negative. We must take our choice of two things. We must either subject the
States to the danger of being injured by the power of the Natl. Govt. or the
latter to the danger of being injured by that of the States. He thought the
danger greater from the States. To leave the power doubtful, would be opening
another spring of discord, and he was for shutting as many of them as possible.
Mr. BEDFORD. In answer to his colleague's
question where wd. be the danger to the States from this power, would refer him
to the smallness of his own State which may be injured at pleasure without
redress. It was meant he found to strip the small States of their equal right of
suffrage. In this case Delaware would have about 1/90 for its share in the
General Councils, whilst Pa. & Va. would posses 1/3 of the whole. Is there
no difference of interests, no rivalship of commerce, of manufactures? Will not
these large States crush the small ones whenever they stand in the way of their
ambitious or interested views. This shews the impossibility of adopting such a
system as that on the table, or any other founded on a change in the principle
of representation. And after all, if a State does not obey the law of the new
System, must not force be resorted to as the only ultimate remedy, in this as in
any other system. It seems as if Pa. & Va. by the conduct of their deputies
wished to provide a system in which they would have an enormous & monstrous
influence. Besides, How can it be thought that the proposed negative can be
exercised? are the laws of the States to be suspended in the most urgent cases
until they can be sent seven or eight hundred miles, and undergo the
deliberations 9 of a body who may be
incapable of Judging of them? Is the National Legislature too to sit continually
in order to revise the laws of the States?
Mr. MADISON observed that the
difficulties which had been started were worthy of attention and ought to be
answered before the question was put. The case of laws of urgent necessity must
be provided for by some emanation of the power from the Natl. Govt. into each
State so far as to give a temporary assent at least. This was the practice in
Royal Colonies before the Revolution and would not have been inconvenient, if
the supreme power of negativing had been faithful to the American interest, and
had possessed the necessary information. He supposed that the negative might be
very properly lodged in the senate alone, and that the more numerous &
expensive branch therefore might not be obliged to sit constantly. — He
asked Mr. B. what would be the consequence to the small States of a dissolution
of the Union wch. seemed likely to happen if no effectual substitute was made
for the defective System existing, and he did not conceive any effectual system
could be substituted on any other basis than that of a proportional suffrage? If
the large States possessed the avarice & ambition with which they were
charged, would the small ones in their neighbourhood, be more secure when all
controul of a Genl. Govt. was withdrawn.
Mr. BUTLER was vehement agst. the
Negative in the proposed extent, as cutting off all hope of equal justice to the
distant States. The people there would not he was sure give it a hearing.
On the question for extending the negative power to all cases as proposd. by
[Mr. P. & Mr. M.] Mass. ay. Cont. no. N. Y. no. N. J. no. Pa. ay. Del. divd.
Mr. Read & Mr. Dickenson ay. Mr. Bedford & Mr. Basset no. Maryd. no. Va.
ay. Mr. R. Mr. Mason no. Mr. Blair, Docr. Mc. g. Mr. M. ay. Genl. W. not
consulted. N. C. no. S. C. no. Geo. no. 10
On motion of Mr. GERRY and Mr.
KING tomorrow was assigned for reconsidering the mode of
appointing the National Executive: the reconsideration being voted for by all
the States except Connecticut & N. Carolina.
Mr. PINKNEY and Mr. RUTLIDGE moved to add to Resoln. 4.
11 agreed to by the Come. the following,
viz. "that the States be divided into three classes, the 1st. class to have
3 members, the 2d. two. & the 3d. one member each; that an estimate be taken
of the comparative importance of each State at fixed periods, so as to ascertain
the number of members they may from time to time be entitled to"
The Committee then rose and the House adjourned.
1. The word "be" is substituted
in the transcript for "lie."
2. The word "then" is omitted in
3. The word "restrain" is
substituted in the transcript for "reclaim."
4. The word "the" is substituted
in the transcript for "a."
5. The word "the" is here
inserted in the transcript.
6. The word "that" is changed to
"than" in the transcript.
7. The word "the" is substituted
in the transcript for "his."
8. The word "more" is here
inserted in the transcript.
9. The transcript uses the word "deliberations"
in the singular.
10. In the transcript the vote reads: "Massachusetts,
Pennsylvania, Virginia, [Mr. Randolph and Mr. Mason, no; Mr. Blair, Doctor
McClurg and Mr. Madison, aye; General Washington not consulted,] aye — 3;
Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina,
Georgia, no — 7; Delaware, divided, [Mr. Read and Mr. Dickinson, aye; Mr.
Bedford and Mr. Basset, no]."
11. The words "the fourth Resolution"
are substituted in the transcript for "Resoln. 4."