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June 15, 1788

August 30, 2021 - 4 minute read


James Madison

After ten days of disorderly debate in the Virginia ratifying convention and the refusal of Patrick Henry to abide by the rule to review the proposed Constitution “clause by clause,” on June 14 the clerk finally was able to read “the 3rd section, article 1” for consideration. Hardly a word was addressed to the 3rd section, so the clerk proceeded to read the 4th and 5th sections, which included the provision that “the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place for choosing Senators.”

James Monroe, one of Patrick Henry’s anti-Constitution allies and future President of the United States, rose, directing his question specifically to James Madison, “the honorable gentleman who had been in the federal convention.”  Why, he demanded, was Congress given “ultimate control” over elections?  Well-versed on the subject, Madison deftly responded. It was impossible to fix the time, place and manner of elections in the Constitution, he said, therefore it was deemed best to leave these regulations in the hands of the states. However, if the states refused to hold such elections, “the general government might easily be dissolved.” Moreover, “some states might regulate elections on principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust.”

Madison singled out South Carolina as an example where elections “are regulated now unequally.”  However, if elections be “regulated properly by the state legislatures,” he said, “congressional control will very probably never be exercised…and as unlikely to be abused as any part of the Constitution.” 

Patrick Henry immediately interjected, challenging Section 6 of Article I, authorizing Senators and Representatives to receive compensation for their services. Moreover, such compensation was to be determined by Congress itself – in other words, they would be paying themselves. These men “may indulge themselves in the fullest extent,” he charged, and “there is no security for this.”  Again, it fell to Madison to explain. Due to the vicissitudes of the value of money circulating throughout the states, fixing compensation in the Constitution itself was simply impractical. Leaving it to the state legislatures could make members of Congress dependent upon the states. It would be “improper that one government should be dependent on another,” he noted, adding that compensation had also been a problem under the Articles of Confederation.

At this point, William Grayson joined in, declaring his concern over the emoluments clause and the power of the Senate to propose or concur with amendments to money bills. Again, Madison responded. Charles Clay questioned the power of Congress to call out the militia to execute federal laws, fearing establishment of a military government. “The power existed in all countries,” Madison responded. “Public force must be used when resistance to the laws required it, otherwise society itself must be destroyed.” 

Then Henry pounced, delivering a long rebuttal to Madison by suggesting inconsistencies in his arguments. Earlier, Henry claimed, Madison had said the “the best way of avoiding the danger of a standing army, was to have the militia in such a way as to render it unnecessary; and that, as the new government would have power over the militia, we should have not a standing army – it being unnecessary.” But, Henry scoffed, “this argument destroys itself. It demands a power and denies the probability of its exercise.”

The debate continued, clause by clause, as delegates intently absorbed the verbal sparring between a master orator who frequently mesmerized his audience and a brilliant scholar whose weak voice was at times inaudible to the scribe sitting in the gallery but whose knowledge and command of every phrase in the Constitution was unequalled.

There were moments when the most preposterous objections to the Constitution tried the patience of Madison, Nicholas, and their allies. George Mason had been a member of the federal convention and was fully aware of the decisions and compromises made there yet grasped at miniscule points to debate. “There were few clauses in the Constitution so dangerous as that which gave Congress exclusive power of legislation within ten miles square,” he warned. Designed simply to provide a seat for the new government, Mason now charged that it “was capable of any extension.” Its “officers or creatures” could “attempt to oppress the people or actually perpetrate the blackest deed.” Why was this dangerous power given, he demanded? “Felons may receive an asylum there and in their strongholds!”

Madison was astonished. “I did conceive, sir, that the clause under consideration was one of those parts which would speak its own praise. It is hardly necessary to say anything concerning it,” but he did, dutifully responding to even this, the most ludicrous of objections. 

On June 15, Mason began the session by raising another issue which he declared to be “a fatal section which has created more dangers than any other,” referring to the clause that permitted importation of slaves for twenty years. Calling the trade “diabolical in itself and disgraceful to mankind,” Mason nevertheless defended the institution of slavery itself, complaining that the Constitution “had not secured to us the property of the slaves we have already.” In short, he said, government should protect our property in slavery but forbid importing more, not simply because it is barbaric, but because “it weakens the states.”

Madison’s rejoinder focused on threats by Georgia and South Carolina to leave the union if the trade were eliminated immediately. For Madison, disunion was considered to be the “greater evil.”  However, many knew that permitting Congress to prohibit the trade after twenty years would, indeed, become the first step toward its permanent abolition.

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