HISTORICAL NOTE ON FORMATION OF THE

CONSTITUTION
In June 1774, the Virginia and Massachusetts assemblies independently
proposed an intercolonial meeting of delegates from the several colonies to
restore union and harmony between Great Britain and her American Colo-
nies. Pursuant to these calls there met in Philadelphia in September of that
year the first Continental Congress, composed of delegates from 12 colonies.
On October 14, 1774, the assembly adopted what has become to be known
as the Declaration and Resolves of the First Continental Congress. In that
instrument, addressed to his Majesty and to the people of Great Britain, there
was embodied a statement of rights and principles, many of which were later
to be incorporated in the Declaration of Independence and the Federal Con-
stitution.1
This Congress adjourned in October with a recommendation that an-
other Congress be held in Philadelphia the following May. Before its succes-
sor met, the battle of Lexington had been fought. In Massachusetts the colo-
nists had organized their own government in defiance of the royal governor
and the Crown. Hence, by general necessity and by common consent, the sec-
ond Continental Congress assumed control of the “Twelve United Colonies”,
soon to become the “Thirteen United Colonies” by the cooperation of Geor-
gia. It became a de facto government; it called upon the other colonies to
assist in the defense of Massachusetts; it issued bills of credit; it took steps
to organize a military force, and appointed George Washington commander
in chief of the Army.
While the declaration of the causes and necessities of taking up arms of
July 6, 1775,2 expressed a “wish” to see the union between Great Britain
and the colonies “restored”, sentiment for independence was growing. Fi-
nally, on May 15, 1776, Virginia instructed her delegates to the Continental
Congress to have that body “declare the united colonies free and indepen-

1 The colonists, for example, claimed the right “to life, liberty, and property”, “the rights,

liberties, and immunities of free and natural-born subjects within the realm of England”; the
right to participate in legislative councils; “the great and inestimable privilege of being tried by
their peers of the vicinage, according to the course of [the common law of England]”; “the immu-
nities and privileges granted and confirmed to them by royal charters, or secured by their sev-
eral codes of provincial laws”; “a right peaceably to assemble, consider of their grievances, and
petition the king.” They further declared that the keeping of a standing army in the colonies in
time of peace without the consent of the colony in which the army was kept was “against law”;
that it was “indispensably necessary to good government, and rendered essential by the Eng-
lish constitution, that the constituent branches of the legislature be independent of each other”;
that certain acts of Parliament in contravention of the foregoing principles were “infringement
and violations of the rights of the colonists.” Text in C. Tansill (ed.), Documents Illustrative of
the Formation of the Union of the American States, H. Doc. No. 358, 69th Congress, 1st sess.
(1927), 1. See also H. Commager (ed.), Documents of American History (New York; 8th ed. 1964),
82.
2 Text in Tansill, op. cit., 10.

XVII
XVIII HISTORICAL NOTE

dent States.” 3 Accordingly on June 7 a resolution was introduced in Con-

gress declaring the union with Great Britain dissolved, proposing the forma-
tion of foreign alliances, and suggesting the drafting of a plan of confederation
to be submitted to the respective colonies.4 Some delegates argued for confed-
eration first and declaration afterwards. This counsel did not prevail. Inde-
pendence was declared on July 4, 1776; the preparation of a plan of confed-
eration was postponed. It was not until November 17, 1777, that the Congress
was able to agree on a form of government which stood some chance of be-
ing approved by the separate States. The Articles of Confederation were then
submitted to the several States, and on July 9, 1778, were finally approved
by a sufficient number to become operative.
Weaknesses inherent in the Articles of Confederation became apparent
before the Revolution out of which that instrument was born had been con-
cluded. Even before the thirteenth State (Maryland) conditionally joined the
“firm league of friendship” on March 1, 1781, the need for a revenue amend-
ment was widely conceded. Congress under the Articles lacked authority to
levy taxes. She could only request the States to contribute their fair share to
the common treasury, but the requested amounts were not forthcoming. To
remedy this defect, Congress applied to the States for power to lay duties
and secure the public debts. Twelve States agreed to such an amendment,
but Rhode Island refused her consent, thereby defeating the proposal.
Thus was emphasized a second weakness in the Articles of Confedera-
tion, namely, the liberum veto which each State possessed whenever amend-
ments to that instrument were proposed. Not only did all amendments have
to be ratified by each of the 13 States, but all important legislation needed
the approval of 9 States. With several delegations often absent, one or two
States were able to defeat legislative proposals of major importance.
Other imperfections in the Articles of Confederation also proved embar-
rassing. Congress could, for example, negotiate treaties with foreign powers,
but all treaties had to be ratified by the several States. Even when a treaty
was approved, Congress lacked authority to secure obedience to its stipula-
tions. Congress could not act directly upon the States or upon individuals.
Under such circumstances foreign nations doubted the value of a treaty with
the new Republic.
Furthermore, Congress had no authority to regulate foreign or inter-
state commerce. Legislation in this field, subject to unimportant exceptions,
was left to the individual States. Disputes between States with common in-
terests in the navigation of certain rivers and bays were inevitable. Discrimi-
natory regulations were followed by reprisals.
Virginia, recognizing the need for an agreement with Maryland respect-
ing the navigation and jurisdiction of the Potomac River, appointed in June
1784, four commissioners to “frame such liberal and equitable regulations
3 Id. at 19.
4 Id. at 21.
 HISTORICAL NOTE XIX

concerning the said river as may be mutually advantageous to the two States.”
Maryland in January 1785 responded to the Virginia resolution by appoint-
ing a like number of commissioners 5 “for the purpose of settling the naviga-
tion and jurisdiction over that part of the bay of Chesapeake which lies within
the limits of Virginia, and over the rivers Potomac and Pocomoke” with full
power on behalf of Maryland “to adjudge and settle the jurisdiction to be
exercised by the said State, respectively, over the waters and navigations of
the same.”
At the invitation of Washington the commissioners met at Mount Ver-
non, in March 1785, and drafted a compact which, in many of its details
relative to the navigation and jurisdiction of the Potomac, is still in force.6
What is more important, the commissioners submitted to their respective States
a report in favor of a convention of all the States “to take into consideration
the trade and commerce” of the Confederation. Virginia, in January 1786,
advocated such a convention, authorizing its commissioners to meet with those
of other States, at a time and place to be agreed on, “to take into consider-
ation the trade of the United States; to examine the relative situations and
trade of the said State; to consider how far a uniform system in their com-
mercial regulations may be necessary to their common interest and their per-
manent harmony; and to report to the several State, such an act relative to
this great object, as when unanimously ratified by them, will enable the United
States in Congress, effectually to provide for the same.” 7
This proposal for a general trade convention seemingly met with gen-
eral approval; nine States appointed commissioners. Under the leadership of
the Virginia delegation, which included Randolph and Madison, Annapolis
was accepted as the place and the first Monday in September 1786 as the
time for the convention. The attendance at Annapolis proved disappointing.
Only five States—Virginia, Pennsylvania, Delaware, New Jersey, and New
York—were represented; delegates from Massachusetts, New Hampshire, North
Carolina, and Rhode Island failed to attend. Because of the small represen-
tation, the Annapolis convention did not deem “it advisable to proceed on
the business of their mission.” After an exchange of views, the Annapolis del-
egates unanimously submitted to their respective States a report in which
they suggested that a convention of representatives from all the States meet
at Philadelphia on the second Monday in May 1787 to examine the defects
in the existing system of government and formulate “a plan for supplying
such defects as may be discovered.” 8

5 George Mason, Edmund Randolph, James Madison, and Alexander Henderson were ap-

pointed commissioners for Virginia; Thomas Johnson, Thomas Stone, Samuel Chase, and Dan-
iel of St. Thomas Jenifer for Maryland.
6 Text of the resolution and details of the compact may be found in Wheaton v. Wise, 153

U.S. 155 (1894).

7 Transill, op. cit., 38.
8 Id. at 39.
XX HISTORICAL NOTE

The Virginia legislature acted promptly upon this recommendation and

appointed a delegation to go to Philadelphia. Within a few weeks New Jer-
sey, Pennsylvania, North Carolina, Delaware, and Georgia also made appoint-
ments. New York and several other States hesitated on the ground that, with-
out the consent of the Continental Congress, the work of the convention would
be extra-legal; that Congress alone could propose amendments to the Ar-
ticles of Confederation. Washington was quite unwilling to attend an irregu-
lar convention. Congressional approval of the proposed convention became,
therefore, highly important. After some hesitancy Congress approved the sug-
gestion for a convention at Philadelphia “for the sole and express purpose of
revising the Articles of Confederation and reporting to Congress and the sev-
eral legislatures such alterations and provisions therein as shall when agreed
to in Congress and confirmed by the States render the Federal Constitution
adequate to the exigencies of Government and the preservation of the Union.”
Thereupon, the remaining States, Rhode Island alone excepted, ap-
pointed in due course delegates to the Convention, and Washington accepted
membership on the Virginia delegation.
Although scheduled to convene on May 14, 1787, it was not until May
25 that enough delegates were present to proceed with the organization of
the Convention. Washington was elected as presiding officer. It was agreed
that the sessions were to be strictly secret.
On May 29 Randolph, on behalf of the Virginia delegation, submitted to
the convention 15 propositions as a plan of government. Despite the fact that
the delegates were limited by their instructions to a revision of the Articles,
Virginia had really recommended a new instrument of government. For ex-
ample, provision was made in the Virginia plan for the separation of the three
branches of government; under the Articles executive, legislative, and judi-
cial powers were vested in the Congress. Furthermore the legislature was to
consist of two houses rather than one.
On May 30 the Convention went into a committee of the whole to con-
sider the 15 propositions of the Virginia plan seriatim. These discussion con-
tinued until June 13, when the Virginia resolutions in amended form were
reported out of committee. They provided for proportional representation in
both houses. The small States were dissatisfied. Therefore, on June 14 when
the Convention was ready to consider the report on the Virginia plan, Paterson
of New Jersey requested an adjournment to allow certain delegations more
time to prepare a substitute plan. The request was granted, and on the next
day Paterson submitted nine resolutions embodying important changes in the
Articles of Confederation, but strictly amendatory in nature. Vigorous de-
bate followed. On June 19 the States rejected the New Jersey plan and voted
to proceed with a discussion of the Virginia plan. The small States became
more and more discontented; there were threats of withdrawal. On July 2,
 HISTORICAL NOTE XXI

the Convention was deadlocked over giving each State an equal vote in the
upper house—five States in the affirmative, five in the negative, one di-
vided.9
The problem was referred to a committee of 11, there being 1 delegate
from each State, to effect a compromise. On July 5 the committee submitted
its report, which became the basis for the “great compromise” of the Conven-
tion. It was recommended that in the upper house each State should have
an equal vote, that in the lower branch each State should have one represen-
tative for every 40,000 inhabitants, counting three-fifths of the slaves, that
money bills should originate in the lower house (not subject to amendment
by the upper chamber). When on July 12 the motion of Gouverneur Morris
of Pennsylvania that direct taxation should also be in proportion to represen-
tation was adopted, a crisis had been successfully surmounted. A compro-
mise spirit began to prevail. The small States were not willing to support a
strong national government.
Debates on the Virginia resolutions continued. The 15 original resolu-
tions had been expanded into 23. Since these resolutions were largely decla-
rations of principles, on July 24 a committee of five 10 was elected to draft a
detailed constitution embodying the fundamental principles which had thus
far been approved. The Convention adjourned from July 26 to August 6 to
await the report of its committee of detail. This committee, in preparing its
draft of a Constitution, turned for assistance to the State constitutions, to
the Articles of Confederation, to the various plans which had been submit-
ted to the Convention and other available material. On the whole the report
of the committee conformed to the resolutions adopted by the Convention,
though on many clauses the members of the committee left the imprint of
their individual and collective judgments. In a few instances the committee
avowedly exercised considerable discretion.
From August 6 to September 10 the report of the committee of detail
was discussed, section by section, clause by clause. Details were attended to,
further compromises were effected. Toward the close of these discussions, on
September 8, another committee of five 11 was appointed “to revise the style
of and arrange the articles which had been agreed to by the house.”
On Wednesday, September 12, the report of the committee of style was
ordered printed for the convenience of the delegates. The Convention for 3
days compared this report with the proceedings of the Convention. The Con-
stitution was ordered engrossed on Saturday, September 15.
The Convention met on Monday, September 17, for its final session. Sev-
eral of the delegates were disappointed in the result. A few deemed the new
9 The New Hampshire delegation did not arrive until July 23, 1787.
10 Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth
of Connecticut, and Wilson of Pennsylvania.
11 William Samuel Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur

Morris of Pennsylvania, James Madison of Virginia, and Rufus King of Massachusetts.

XXII HISTORICAL NOTE

Constitution a mere makeshift, a series of unfortunate compromises. The ad-

vocates of the Constitution, realizing the impending difficulty of obtaining
the consent of the States to the new instrument of Government, were anx-
ious to obtain the unanimous support of the delegations from each State. It
was feared that many of the delegates would refuse to give their individual
assent to the Constitution. Therefore, in order that the action of the Conven-
tion would appear to be unanimous, Gouverneur Morris devised the formula
“Done in Convention, by the unanimous consent of the States present the
17th of September . . . In witness whereof we have hereunto subscribed our
names.” Thirty-nine of the forty-two delegates present thereupon “sub-
scribed” to the document.12
The convention had been called to revise the Articles of Confederation.
Instead, it reported to the Continental Congress a new Constitution. Further-
more, while the Articles specified that no amendments should be effective
until approved by the legislatures of all the States, the Philadelphia Conven-
tion suggested that the new Constitution should supplant the Articles of Con-
federation when ratified by conventions in nine States. For these reasons, it
was feared that the new Constitution might arouse opposition in Congress.
Three members of the Convention—Madison, Gorham, and King—were
also Members of Congress. They proceeded at once to New York, where Con-
gress was in session, to placate the expected opposition. Aware of their van-
ishing authority, Congress on September 28, after some debate, decided to
submit the Constitution to the States for action. It made no recommenda-
tion for or against adoption.
Two parties soon developed, one in opposition and one in support of the
Constitution, and the Constitution was debated, criticized, and expounded
clause by clause. Hamilton, Madison, and Jay wrote a series of commentar-
ies, now known as the Federalist Papers, in support of the new instrument
of government.13 The closeness and bitterness of the struggle over ratifica-
tion and the conferring of additional powers on the central government can
scarcely be exaggerated. In some States ratification was effected only after a
bitter struggle in the State convention itself.
Delaware, on December 7, 1787, became the first State to ratify the new
Constitution, the vote being unanimous. Pennsylvania ratified on December
12, 1787, by a vote of 46 to 23, a vote scarcely indicative of the struggle
which had taken place in that State. New Jersey ratified on December 19,
1787, and Georgia on January 2, 1788, the vote in both States being unani-
mous. Connecticut ratified on January 9, 1788; yeas 128, nays 40. On Febru-
ary 6, 1788, Massachusetts, by a narrow margin of 19 votes in a convention
12 At least 65 persons had received appointments as delegates to the Convention; 55 actu-

ally attended at different times during the course of the proceedings; 39 signed the document.
It has been estimated that generally fewer than 30 delegates attended the daily sessions.
13 These commentaries on the Constitution, written during the struggle for ratification, have

been frequently cited by the Supreme Court as an authoritative contemporary interpretation of

the meaning of its provisions.
 HISTORICAL NOTE XXIII

with a membership of 355, endorsed the new Constitution, but recom-

mended that a bill of rights be added to protect the States from federal en-
croachment on individual liberties. Maryland ratified on April 28, 1788; yeas
63, nays 11. South Carolina ratified on May 23, 1788; yeas 149, nays 73. On
June 21, 1788, by a vote of 57 to 46, New Hampshire became the ninth State
to ratify, but like Massachusetts she suggested a bill of rights.
By the terms of the Constitution nine States were sufficient for its estab-
lishment among the States so ratifying. The advocates of the new Constitu-
tion realized, however, that the new Government could not succeed without
the addition of New York and Virginia, neither of which had ratified. Madi-
son, Marshall, and Randolph led the struggle for ratification in Virginia. On
June 25, 1788, by a narrow margin of 10 votes in a convention of 168 mem-
bers, that State ratified over the objection of such delegates as George Ma-
son and Patrick Henry. In New York an attempt to attach conditions to rati-
fication almost succeeded. But on July 26, 1788, New York ratified, with a
recommendation that a bill of rights be appended. The vote was close—yeas
30, nays 27.
Eleven States having thus ratified the Constitution,14 the Continental
Congress—which still functioned at irregular intervals—passed a resolution
on September 13, 1788, to put the new Constitution into operation. The first
Wednesday of January 1789 was fixed as the day for choosing presidential
electors, the first Wednesday of February for the meeting of electors, and
the first Wednesday of March (i.e. March 4, 1789) for the opening session of
the new Congress. Owing to various delays, Congress was late in assem-
bling, and it was not until April 30, 1789, that George Washington was inau-
gurated as the first President of the United States.

14 North Carolina added her ratification on November 21, 1789; yeas 184, nays 77. Rhode

Island did not ratify until May 29, 1790; yeas 34, nays 32.