The Fight in Congress

When the Constitution was sent from Philadelphia to New York for its official presentation to the sitting Congress, several delegates to the Convention followed in its path (many of the congressmen had served as Convention delegates).  Congress received the Constitution on September 20 and began debating it a week later.  Madison arrived on the scene not long after Congress began its debates, and he found that the objections from the Convention’s three dissenters had already preceded him.  Most of the initial debates in Congress were not about the merits or defects of the Constitution, itself; instead, the earliest detractors concentrated on the extraordinary license that the Framers had taken in devising a new government rather than patching up the old one.  They were also insistent that Congress and the states ought to be able to insist upon amendments to the plan before ratifying.  

The Federalists not only wanted to keep Congress from recommending amendments, but many wanted Congress to send the Constitution to the states with their explicit endorsement.  Article VII of the Constitution had been minimalist in its description of the process: “The Ratification of the Conventions of nine States, shall be sufficient …” The Convention had outlined its preferred mode of ratification in greater detail within an accompanying resolution to Congress, and it had stipulated only: “That the preceding Constitution be laid before the United States in Congress assembled; and that it is the opinion of this Convention, that it should afterwards be submitted” to the states. These instructions neither required nor forbade Congress from giving the Constitution its blessing, nor did it say anything about possible amendments.  And even if the resolutions had been more specific, was Congress beholden to instructions dictated by a Convention that had been called into existence by Congress?  

The congressmen who were most suspicious of the Constitution were not at this time trying to defeat it outright; they merely wanted to amend its perceived defects before sending it forth to the states.  Madison wrote to Washington that Richard Henry Lee (from Virginia) and Melancton Smith (from New York) “contended, that Congress had an undoubted right to insert amendments, and that it was their duty to make use of it in a case where the essential guards of liberty had been omitted.”  On the floor of Congress, Lee had accused his opponents’ position of being strange and nonsensical; it was “like presenting a hungry man 50 dishes and insisting he should eat all or none.”  The federal Convention was not the only body of men with intelligence enough to make worthwhile contributions toward formulating a good plan of government.  Lee proposed a set of amendments that included an extensive enumeration of rights.  

Madison reported that the Constitution’s advocates did not deny Congress’ right to insert amendments, “but the inexpediency of exerting it was urged.”  There were many reasons for its inexpediency, but primarily they insisted that, if Congress should have any agency in the design of government, then the Constitution would be transformed into “the mere act of Congress.”  As such, it would be subject to the amendment process prescribed by the Articles of Confederation.  Most important, it would mean that the Constitution would “require the ratification of thirteen instead of nine states.”  If the Constitution meant to supplant the Articles, rather than being inextricably bound to them, then Congress must step aside as a lawmaking body in this instance and act simply as a conduit for conveying the document to the states to ratify. Congress spent only a few days on the debate, and the members ultimately decided, “unanimously,” to send the Constitution to the states as they had received it.  But the unanimity applied only to the decision to send the Constitution; it was not an endorsement of the plan.  Madison admitted that “a more direct approbation” from Congress “would have been of advantage in [New York] and some other states.”  Still, he was satisfied with the outcome.  He predicted that “the circumstance of unanimity must be favorable every where.”  Nonetheless, Congress’ decision to send the Constitution to the states certainly did not resolve the disagreement about whether the plan should be debated as a fait accompli or whether the states could insist upon amendments before adopting it.  Lee continued to hope that the states might be able to propose amendments, even if Congress chose to abstain.  This disagreement over amendments would continue throughout the ratification process.  For the time being, however, the Federalists had scored their first victory.