August 23, 1787: The Supreme Law of the Land

Independence Hall

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"What are the Convention about? When will they rise? Will they agree upon a system energetic and effectual, or will they break up without doing anything to the Purpose? Full of Disputation and noisy as the wind, it is said, that you are afraid of the very windows, and have a man planted under them to prevent the Secrets and doings from flying out."

--William Paterson to Oliver Elsworth

Thursday, August 23, 1787: The Convention Today
Regarding authority over state militias, the language the Committee of Detail settled on gave the United States Congress authority “to make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States.”

This was much more expansive than many would have liked. Gerry (MA) was almost hysterical in his opposition. This section would make the states mere “drill-sergeants.” He would rather “let the citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the General Legislature. It would be regarded as a system of despotism.”

Madison (VA) tried to soothe him by saying that “‘arming,’ as explained, did not extend to furnishing arms,” which King (MA), while also supporting the clause, contradicted by saying “‘arming’... included the authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury.”

Langdon (NH) “could not understand the jealousy expressed by some gentlemen. The General and State Governments were not enemies to each other, but different institutions for the good of the people of America... In transferring power from one to the other, I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.”

Madison and Randolph (VA) both argued that the states were doing a poor job of managing the militias. The section passed.

Charles Pinckney (NC) urged a clause forbidding government officers from accepting “any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State” without Congress’s approval. His idea passed unanimously with no debate.

Similarly approved was a monumentally important clause proposed by Rutledge (SC): “This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States shall be the supreme law of the several States and of their citizens and inhabitants; and the judges of the several states shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States to the contrary notwithstanding.”

C. Pinckney, seconded by Broom (DE), moved to bring back an idea that had already been discarded: letting the US Congress “negative” state laws, this time with a two-thirds margin. Madison and Langdon supported him.

Sherman pointed out that Rutledge’s supremacy clause, which they had all just approved, made C. Pinckney’s proposition unnecessary. The courts would strike down unconstitutional state laws.

Mason (VA) “wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the sanction of the General Legislature? Is this to sit constantly in order to receive and revise the State laws?” Ellsworth (CT) also found the logistics of the idea preposterous. G. Morris was inclined to agree, but he suggested having a committee work it out.

Williamson (NC) was irritated at the “waste of time” in bringing this idea up again.

Wilson thought the proposal was a “key-stone wanted to complete the wide arch of government we are raising... It will be better to prevent the passage of an improper law, than to declare it void when passed.”

“If nothing else, this alone would damn and ought to damn, the Constitution. Will any State ever agree to be bound hand and foot in this manner?” said Rutledge. The proposal would make the states “mere corporations.”

C. Pinckney’s motion letting the US Congress “negative” state laws failed 5-6, with New Hampshire, Pennsylvania, Delaware, Maryland, and Virginia in support.

The Convention approved language requiring the federal government to pay its creditors. Butler (SC) “expressed his dissatisfaction.” Many soldiers during the Revolutionary War had been effectively paid with IOUs which had not yet been made good on. Many financially desperate veterans, in turn, had sold their almost worthless paper promises to speculators at a depreciated value. He did not want to “compel payment, as well to the blood-suckers who had speculated on the distresses of others, as to those who had fought and bled for their country.” He told everyone he would push the next day to make a discrimination between these classes.

The draft Constitution left the Senate in charge of negotiating treaties, which seemed ill-advised to Madison and many others, and the disfavored section was referred to a committee for revision.

Synopsis

• The Convention gave the United States Congress the power of “organizing, arming, and disciplining” the states’ militias, and of “governing” them when in the service of the United States.
• The Emoluments Clause passed, forbidding government officers from accepting “any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State” without Congress’s approval.
• The Supremacy Clause passed: “This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States shall be the supreme law of the several States and of their citizens and inhabitants; and the judges of the several states shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States to the contrary notwithstanding.”
• Several delegates were exasperated when the idea of having the United States Congress “negative” state laws was brought up—and shot down—yet another time.

Delegates Today

• Franklin (PA) met with the state's Supreme Executive Council.
• McHenry (MD) wrote to his wife, “My dear Peggy It is altogether uncertain when the convention will rise, but it is likely to be about three weeks hence.”
• Paterson (NJ) chummily wrote from New Brunswick to Ellsworth (CT). “I wish you much speed... mainly for my own Sake, for I dread going down again to Philada.” The letter bypassed Ellsworth as he left Philadelphia today for home.

Philadelphia Today

• Thomas Clifford reported to the Board of Managers of the Philadelphia Dispensary that the Dispensary had moved to a house he had rented on Chestnut Street belonging to John Guest. This private charity, which had just opened its door in 1786, provided emergency room and out-patient treatment by Philadelphia’s leading doctors. In 1787, the Dispensary treated 1,647 patients. No other American city provided this kind of free medical care.