Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Federalism
Congress
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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Madison and the Federal Veto

Support for a Federal Veto Declines

The pendulum arc of the Convention, which up to then had favored the nationalists, continued to swing back, when on June 15, William Paterson introduced his more federally-framed New Jersey Plan, which of course did not include any federal veto at all. Although his plan would ultimately be rejected, it reopened the question of federal versus national forms of government, which in turn led many members to reconsider some of the more expansive powers given to Congress.

When John Lansing compared the two plans the following day, June 16, one of his reasons for rejecting the Virginia Plan was: “The states will never feel a sufficient confidence in a general government, to give it a negative on their laws.” A few days later he added: “Will the members of the general legislature be competent judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in New Hampshire?” A week later, Luther Martin of Maryland proclaimed: “the states, particularly the smaller, would never allow a negative to be exercised over their laws.” These objections to the federal veto were issued in the month between the report by the Committee of the Whole and the reconsideration of the provision by the Convention as a whole. Meanwhile, many of them were also feeling the influence of the “Great Compromise,” which split the balance of power in the Congress between the large states and the small states. That “compromise” (which had primarily been viewed as a defeat by the large states) had dampened the enthusiasm of many of their delegates for a stronger national government. When the proposal for a federal veto came up for consideration by the whole Convention, it seemed to have acquired more opponents, and its dwindling proponents were on the defensive.

The Federal Veto Falls

July 17 began with a reconsideration of the general powers given to Congress. When the federal veto was up for consideration, it was Morris who first responded that he “opposed this power as likely to be terrible to the states, and not necessary if sufficient legislative authority should be given to the general government.” Presumably, Gouverneur Morris was thinking that if Congress were given sufficient legislative authority, they could simply pass laws which would forbid “improper laws” like paper money in the states, and it would therefore be unnecessary to have the additional power of vetoing state laws after they were passed. After thinking it over, Morris “was more and more opposed to the negative.” Roger Sherman likewise thought the power unnecessary, because the courts would not uphold any law that was passed “contravening the authority of the Union.” Vesting such a power in the legislature would therefore be redundant.

Madison was not satisfied with these alternatives. He countered that challenging objectionable laws in the courts would take too long. States would “pass laws which will accomplish their injurious objects before they can be repealed by the general legislature, or set aside by the national tribunals.” The federal veto was designed to prevent injustice, which was superior to seeking redress after injustices had already taken place. He repeated that the “power of negativing the improper laws of the states is at once the most mild and certain means of preserving the harmony of the system.” Charles Pinckney agreed that it was necessary. This time, however, they were in the decided minority. Even the narrower scope of the federal veto lost, 7 to 3. Madison took this defeat hard, since he really believed that it was key to the success of the system.

Prohibitions on State Powers

What happened next was one of those curious twists in the Convention: a quiet insurgency that would alter the shape of the Constitution in subtle but important ways. A small committee independently decided to insert provisions into their report without any explicit sanction from the rest of the Convention members. From July 27 to August 5, the Convention recessed while a five-member “Committee of Detail,” comprised of Rutledge, Randolph, Gorham, Ellsworth and Wilson, met to draft a provisional constitution based on the decisions the Convention had made up to that point. In addition to compiling and arranging the provisions that had received official approval from the Framers’ votes, the committee also added a few features on its own initiative. Their report, which was delivered on August 6, was a list of 23 articles, and Articles 12 and 13 were devoted to enumerating the powers that should be forbidden to states. The first of the prohibitions in Article 13 was similar to a suggestion that had been made by Elbridge Gerry but which had been ignored at the time it was spoken: “No state, without the consent of the legislature of the United States, shall emit bills of credit, or make any thing but specie [coined money] a tender in payment of debts.” This provision would prohibit the states from committing two of the four “injustices” named by Madison: printing paper money and substituting land instead of cash as the payment of contracts.