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Federalism
Congress
Slavery and the Constitution
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Madison and the Federal Veto

Other Solutions: Considering State Powers

The Convention did not debate these prohibitions on state powers until August 28. In the meantime, on August 23, Charles Pinckney and James Madison again tried to reinstate some version of the federal veto into the Constitution. Pinckney moved that Congress should be empowered to veto state laws “provided that two thirds of the members of each House assent to the same.” By this time, however, the supremacy clause had been added, and Roger Sherman therefore believed that the power would be unnecessary. James Wilson “considered this as the key-stone wanted to complete the wide arch of government we are raising.” And at the other end of the spectrum, John Rutledge thought that this provision “alone would damn, and ought to damn, the Constitution. Will any state ever agree to be bound hand and foot in this manner?”  A few delegates argued in its favor, but not enough agreed with them. 

On August 28, the Convention considered the prohibitions on state powers. Wilson and Sherman immediately sought to strengthen the prohibition on paper money. They wanted to drop the language about the consent of Congress, and instead absolutely forbid the states from these dubious emissions. Sherman “thought this a favorable crisis for crushing paper money.” Most of the Convention agreed, and the change was made with little dissent. Rufus King then proposed that they should add to this list “a prohibition on the States to interfere in private contracts.” Others objected that this would be taking things too far. Numerous laws are passed that inevitably affect private contracts, and an absolute prohibition would prevent the passage of many sound measures. It was then suggested that a prohibition on “retrospective” or “ex post facto” laws would secure the same result, and that wording was substituted by the Convention, and the language about forbidding the interference of contracts was dropped. 

Arriving at a Final Decision

The next day, on August 29, John Dickinson announced that he had consulted Blackstone’s Commentaries, and he found that prohibitions on “ex post facto” laws related only to criminal law, not civil law, which governed private contracts. Therefore, their substitution on the previous day would not accomplish the goal of keeping states from interfering with contracts. The Convention as a whole, however, did not act on Dickinson’s observation. Instead, once again, a committee took the matter into their own hands. On September 8, a five-member “Committee of Style,” consisting of Johnson, Hamilton, Morris, Madison, and King, was appointed to transform the Convention’s disparate decisions into a final form of the Constitution. The prohibitions on state powers were placed into Article I, Section 10. The Committee retained what had already been adopted—such as forbidding the states from printing money and passing ex post facto laws—but on its own initiative it reinserted the prohibition on “impairing the obligation of contracts.” 

Article 1, Section 10 in Final Form

When Article I, Section 10, took its final form on September 14, the only objection voiced was that the prohibitions against impairing the obligation of contracts ought to be extended to Congress as well as the state legislatures. But by this time, the delegates were in a hurry to finish their work, and that suggestion was not answered or seconded. Instead, Article I, Section 10, took the form we find today:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

But this clause is the only vestige in the final Constitution of Madison’s grand design for a federal veto, and he believed it would be a woefully deficient substitution. Less than two weeks before the Convention adjourned, he wrote a dispirited letter to his friend, Thomas Jefferson, in Paris. He gave it as his opinion that the Constitution, even if it were adopted, “will neither effectually answer its national object nor prevent the local mischiefs which everywhere excite disgusts against the state governments.” Madison had chiefly in mind the omission of the federal veto. Yet he knew that even his friend had remained skeptical about his idea. Jefferson had previously written that the federal veto “proposes to mend a small hole by covering the whole garment.” Jefferson instead believed that the intervention of a federal judiciary would be sufficient to correct the problems of bad state laws, and that a judicial remedy was not liable to the sorts of abuses that could be expected if Congress were given the power to veto any state law it chose. A month after the Convention, Madison again wrote to Jefferson, and gave his most complete defense yet for the necessity and desirability of the federal veto. By this time, of course, it was a lost cause, but Madison still clung to the principle.