The Critical Role of Committees at the U.S. Constitutional Convention of 1787

Transcription

1 The Critical Role of Committees at the U.S. Constitutional Convention of 1787 by JOHN R. VILE* Few topics related to the Constitutional Convention of 1787 that drafted the U.S. Constitution are more important, or less studied, than the role that committees played at this meeting. During the course of a session that lasted from May 25 through September 17, the Convention resolved itself into a Committee of the Whole during the opening weeks and subsequently appointed twelve committees to address specific issues. Committees helped establish rules for the convention, formulate vital compromises, draft key sections, and give the final polish to the document. The Constitutional Convention met in Philadelphia to address problems that had become evident under the Articles of Confederation. After declaring independence in 1776, the Second Continental Congress had proposed the Articles in 1777, and the last state (Maryland, which had waited for large states to give up their western land claims) had ratified in The primary difficulty with the government under the Articles was that the Articles had vested inadequate power in Congress.' The Articles did not, for example, give Congress power over interstate commerce. By contrast, the Articles had provided that: Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegates to the United States, in Congress assembled.2 Under the Articles of Confederation, Congress had to requisition states for tax revenues and troops, and states were often unwilling and/or unable to comply. On key matters, the Confederation required consent by nine or more state congressional delegations, and it required unanimous state con- *John R Vile, B.A., the College of William and Mary, Ph.D., University of Virginia, is professor and Chair of the Department of Political Science at Middle Tennessee State University in Murfreesboro. He is the author of THE CONSTITUTIONAL CONVENTION OF 1787: A COMPREHENSIVE ENCYCLOPEDIA OF AMERICA'S FOUNDING, 2 VOLS. (2005). Much of the research for this article, and some of the specific language, is taken directly from this work. The author wishes to thank Middle Tennessee State University for research support for this project. 1. For key works on the Confederation, see MERRILL JENSEN, THE ARTICLES OF CONFEDERATION (1966); ROBERT W. HOFFERT, A POLITICS OF TENSIONS: THE ARTICLES OF CONFEDERATION AND AMERICAN POLITICAL IDEALS (1992); KEITH L.DOUGHERTY, COLLECTIVE ACTION UNDER THE ARTICLES OF CONFEDERATION (2001); ANDREW C. McLAUGHLIN, THE CONFEDERATION AND THE CONSTITUTION, (1962 [1905]; and Richard B. Morris, The Confederation Period and the American Historian," 13 WM. & MARY QUAR., 3rd Sere (1956). 2. Quoted from Article II as found in WINTON U. SOLBERG, ED., THE FEDERAL CONVENTION AND THE FORMATION OF THE UNION OF THE AMERICAN STATES 42 (1958). Herinafter cited as SOLBERG.

2 148 THE AMERICAN JOURNAL OFLEGAL HISTORY Vol. XLVIII sent to amendments) America found itself unable to enforce treaties with foreign nations, and foreign governments increasingly doubted the viability of the new government.s After delegates from Virginia and Maryland met at Mt. Vernon to discuss common matters of commerce, a further meeting of delegates from five states at Annapolis, Maryland> had issued the call for a convention of all the states "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal [sic] Government adequate to the exigencies of the Union."6 Led by Virginia, six states appointed delegates to this convention." The outbreak of Shay's Rebellion in Massachusetts that winter spread alarm about the ability of the government to maintain orders and helped persuade Congress to adopt a resolution of support for the Convention.? In time, 12 of the 13 states (all but Rhode Island) sent delegates to the Convention. The Convention was not a large body. States were represented by from two to eight delegates. Altogether, 55 individuals attended. Delegates, who often held other offices, arrived late and left early. Some delegates took fairly extensive leaves of absences, and scholars generally estimate that the average attendance was probably about 30 to u., Article IX, p. 49 and Article XIII, p. 51. The former specifies that: "The united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expences necessary for the defence and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same." 4. MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT: ORIGINS OF THE U.S. CONSTITUTION AND THE MAKING OF THE AMERICAN STATE (2003) and DAVID C. HENDRICKSON, PEACE PACT: THELOST WORLD OFTHE AMERICAN FOUNDING (2003). 5. See Jack N. Rakove, The Gamble at Annapolis, THIS CONSTITUTION no. 12,5-10 (1986). 6. SOLBERG at [d. at 60-63, 8. For discussion of this event, see Robert A. Feer, Shay's Rebellion and the Constitution: A Study in Causation, 42 NEWENG. QUAR (1969); LEONARD L. RICHARDS, SHAY'S REBELLION: THEAMERICAN REVOLUTION'S FINAL BATILE(2002); and Joseph P. Warren, The Confederation and Shay's Rebellion. 11 AMER. HISTORICAL REv (1905). 9. SOLBERG at 64. The resolution specified: "Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the severallegislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the states render the federal constitutional adequate to the exigencies of Government and the preservation of the Union." 10. In characteristically thorough fashion, historian Clinton Rossiter divided the convention delegates into four groups. Of the fifty-five men who attended, he classified 29 as "fulltimes" and 10 as "full-times except for a few missed weeks. He identified 12 who "missed long and critical portions of the Convention" and four others who could almost be called absentees. See CLINTON ROSSITER, 1787: THEGRAND CONVENTION (1966).

3 2006 COMMITIEES AT THE CONSTITUTIONAL CONVENTION 149 In addition to holding a variety of other offices, many of the delegates had served in one or both of the Continental Congresses and in the Congress under the Articles of Confederation. 11 In part because neither government had an independent executive or judicial branch, these bodies, like their state counterparts, relied heavily on committees,12 which allowed for quicker action and for specialization. In contrast to these congresses, the convention did not last long enough for it to appoint standing committees whose members could develop expertise in specific subject areas. However, in addition to using committees to effect compromises that floor debates did not appear to be facilitating, the convention did sometimes appoint delegates to committees for the special expertise they already had. RULES COMMITTEE The Constitutional Convention had been scheduled to begin on Monday, May 14, 1787, but it took until Friday, May 25 for representatives to arrive in Philadelphia from a majority of states. The fact that the Convention waited on such a quorum indicates that its members were habituated to parliamentary procedures even before they unanimously elected George Washington as president of the convention. Once that was done, Charles Pinckney of South Carolina-otherwise best known for a plan of government which he may have authored or may chiefly have borrowed, but which the Convention appears largely to have ignored13-proposed that the Convention choose a committee to draw up "standing Orders of the Convention."14 Perhaps in part because Pinckney had proposed the committee, the Convention appointed him as well as New York's Alexander Hamilton and Virginia's George Wythe as its members. All three were lawyers. Pinckney represented the deep South, Wythe the upper South (and perhaps by extension the middle states), and Hamilton the East (or North). It seems somewhat surprising that the Convention did not appoint James Wilson of Pennsylvania, who later lectured on the Constitution and served on the U.S. Supreme Court, to the body, but delegates may have perceived value in having a committee composed of an 11. Martin Diamond has observed that six of the 55 delegates had signed the Declaration of Independence and six had signed the Articles of Confederation; 24 had served in the Continental Congress; 46 had served in state or colonial legislatures; 10 had helped to draft state constitutions; 39 had served, or were then serving, in the federal Congress; and three had been administrative officers under the Articles. See MARTIN DIAMOND, THE FOUNDING OF THE DEMOCRATIC REPUBLIC 17 (1981). 12. Norman K. Risjord, Partisanship and Power: House Committees and the Powers of the Speaker, WM. & MARY QUAR. 3rd Ser. 632 (1992). 13. For a summaiy of this plan and the controversy that surrounds it, see MARTY D. MATIHEWS, FORGOTIEN FOUNDER: THE LIFE AND TIMES OF CHARLES PINCKLEY (2004). 14. MAX FARRAND, ed. THE RECORDS OF THE FEDERAL CONVENTION OF 1787 [herein cited as FARRAND], 4 vols., I, 2 (1937 rev. ed, 1966). These volumes have been ably supplemented by JAMES H. HUTSON, ed., SUPPLEMENT TO MAX FARRAND'S THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (1987).

4 150 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII odd-number of men who could break deadlocks. The Convention then adjourned over the weekend, and the committee reported to the Convention on Monday, May 28. Although it is not clear whether the Convention officially designated him as the Committee Chairman, George Wythe presented the report of the Committee and presumably served as such. Wythe's service at the Convention was unfortunately limited to the first week, after which he went home to Williamsburg, Virginia to comfort a dying wife and did not return. He was a mentor to Thomas Jefferson and many other early American statesmen, the first professor of law (at William and Mary) in the nation, and only the second (after William Blackstone) in the Englishspeaking world.i> The official journal of the Convention, which Major William Jackson compiled, reports that the Convention rejected two of the Committee's proposals and amended a number of others.te Apparently, the rules that the committee proposed included one that would have recorded how individuals voted on specific issues. Rufus King of Massachusetts and George Mason of Virginia both objected that this would make it more difficult for members, wishing to preserve reputations for consistency, to alter positions during debates.l? Official Records and Madison's notes also indicate that the Convention's decision to keep proceedings secret may also have come from the floor, along with a proposal designed to allow the Convention to readdress issues, without doing so too frequently.18 The Rules Committee specifically provided for the appointment of future committees, but this rule should be interpreted against the background of another. Madison reports that delegates from Pennsylvania, most notably Gouverneur Morris and Robert Morris, arrived wanting to insist on apportioning state votes at the convention according to population. Madison further reported that the Virginia delegates, who were quite sympathetic to the idea, had nonetheless resisted, arguing that "it would be easier to prevail on the latter [small-state delegates], in the course of the deliberations, to give up their equality for the sake of an effective Government, than on taking the field of discussion, to disarm themselves of the right & thereby throw themselves on the mercy of the large States."19 The first rule that the Committee had therefore proposed, and 15. See JOHN R. VILE, ed., GREAT AMERICAN LAWYERS: AN ENCYCLOPEDIA, 2 vols., II, 735 (2001). 16. FARRAND, I, It is interesting to speculate as to whether Wythe might have asked Mason (a fellow delegate from Virginia) to suggest the secrecy rule on the floor of the convention, but since the states present unanimously adopted the rule, there is no special reason to believe that Wythe was using floor debates to win a battle he had lost in committee. 18. FARRAND, I, FARRAND, I, 11. Delegates from Delaware arrived at the Convention with specific instructions not to give up equal state representation in Congress, See FARRAND, I, 37, so it is unlikely that they would have stayed had they initially been denied the equal representation to which they had been accustomed under the Articles of Confederation.

5 2006 COMMITfEES AT THE CONSTITUTIONAL CONVENTION 151 the convention had adopted, called for each state to have a single vote.2o In providing for committees, the Convention accordingly adopted a rule specifying that: Committees shall be appointed by ballot; and the members who have the greatest number of ballots, altho' not a majority of the votes present, shall be the Committee-When two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred.s! Scholars have stressed the important role that compromise played at the Constitutional Convention,22 as well as during ratification debates,23 and the method of committee selection was formulated with a view of facilitating such compromise. Dana Lansky has observed that "This process led to individuals being chosen whose views on, and approaches toward, the particular task were acceptable to a large number of people."24 Analyzing patterns of alignment and realignment at the Convention, Calvin Jillson concludes that committees were a key to compromise Whenever they were faced with a conflict that seemed to be insoluble under normal decision procedures, the convention delegates would deliberately select a compromise committee composed of moderates on the issue. After relatively brief deliberation, this committee would return to the floor with a proposal acceptable to neither extreme but supported by a majority. Such a compromise solution, when accepted by the convention, rapidly deflated the salience, centrality, and potential for future divisiveness of the issue.25 It is difficult to gather much more about committee selection from convention reports. A full half of the committees appointed consisted of one member from each state present. Selection for committee service might be one fairly strong indication of how individual delegates were collectively viewed by delegates from other states, but it is not foolproof The fact that the Convention unanimously selected George Washington as its president is but one factor suggesting that it regarded him as highly as any delegate who was present, and yet, probably because he was President of the Convention and tried to maintain neutrality, he either chose not to serve, or was not selected to serve, on any committees. 20. Rhode Island did not send delegates, and delegates from New York left the convention about the time that those from New Hampshire arrived. On most matters, then, the maximum vote was eleven states. A vote of 7 to 3 to 1 would indicate that seven states votes for a proposal, three against it, one was divided, one state had not yet arrived, and one would never do so. 21. FARRAND, I, See especially Max Farrand, Compromises of the Constitution, 1 ANNUAL REPORT OF THE AMER. HISTORICAL Assoc (1904) and William E. Nelson, Reason and Compromise in the Establishment of the Federal Constitution, WM. AND MARY QUAR., 3rd ser (1987). 23. Peter B Knupfer, The Rhetoric of Conciliation: American Civil Culture and the Federalist Defense ofcompromise. 11 J. OFTHE EARLY REpUBLIC (1991). 24. Dana Lansky, Proceeding to a Constitution: A Multi-Party Negotiation Analysis of the Constitutional Convention of HARV. NEGOT. L. REv. 326 (2000). 25. Calvin C. Jillson, Constitution-Making: Alignment and Realignment in the Federal Convention of1787,75 AMER. POLITICAL SCI.REV. 603 (1981).

6 152 THE AMERICAN JOURNAL OFLEGAL HISTORY Vol. XLVIII On Tuesday, May 29, the Convention adopted supplemental rules. One provided "That committees do not sit whilst the House shall be or ought to be, sitting."26 On most occasions, committees appear to have done their work before or after convention hours, which were typically from 10:00 a.m. to 4:00 p.m., but, from time to time, they were accorded more time. The Convention thus adjourned over a weekend so the Rules Committee could meet on Saturday, the Committee that the Convention appointed on July 2 to formulate a proposal for representation in Congress had the Independence Day holiday to do its work, and, in the case of the Committee of Detail, which the Committee appointed on July 24, the Convention actually adjourned for about a week so that it could do its job. In any event, whatever other responsibilities they might have had, committee members did not, like modern members of Congress, have to choose between attending the convention or participating in committee meetings. The same day that the Convention provided that committees would not meet during its proceedings, it narrowly rejected a motion that Charles Pinckney offered to appoint a committee "to superintend the minutes." Gouverneur Morris had objected that the secretary had this responsibility and that "A committee might have an interest & bias in moulding [sic] the entry according to their opinions and wishes."27 This indicates that delegates were alert to at least one of the pitfalls of committees. In responding in 1788 during the controversy over ratification of the Constitution to the charge that he might have missed a motion that Elbridge Gerry introduced in committee, Maryland's Luther Martin cast further light on committee deliberations when he indicated that "The business of the committees were not of a secret nnture [sic], nor were they conducted in a secret manner; I mean as to the members of the Convention."28 This suggests that members of the Convention could attend committee meetings, although it is not altogether clear that they could otherwise participate.29 At the very least, it suggests that members of committees were not necessarily bound by rules of secrecy in communicating their deliberations with other delegates.w 26. FARRAND, I, FARRAND, 1, FARRAND, III, 279. In what may be something of an exception to this observation, the delegates voted on July 25 to furnish copies of the convention's proceedings to the Committee of Detail but to withhold them from other members of the house. See FARRAND, III, 115. The delegates likely reasoned that five men were less likely to misplace or "leak" copies of the proceedings to the general public than was the entire convention. 29. PAUL S. CLARKSON AND R. SAMUEL JETT, LUTHER MARTIN OFMARYLAND 108 (1970). 30. The idea of appointing committees with a member from each state, which the convention utilized on six different occasions, suggests that the Convention may actually have hoped that individual representatives would bring ideas from their state delegations to committee deliberations. Convention delegates might also have hoped that members of such committees would seek to persuade members of their delegations that they had made the best case on behalf of state interests that they could.

7 2006 COMMITIEES ATTHE CONSTITUTIONAL CONVENTION 153 THE COMMITTEE OF THE WHOLE From May 30 through June 19, the Convention started each day of business by resolving itself into a Committee of the Whole. This mechanism had developed in the English Parliament to expedite businessu had been extensively used in early Congresses,32 and is still employed in congress and other contemporary bodies. The Convention selected Nathaniel Gorham of Massachusetts, to serve as committee chair; he had been a leader in the Congress under the Articles of Confederation, where he had served briefly as president. Given Washington's role as President of the Convention, it is possible that regional considerations also influenced Gorham's selection by balancing a Southerner with a Northerner (albeit one from a fairly large state). The vote appears to have been 7 to 1 for him over John Rutledge of South Carolina; in publishing the Convention's notes, John Quincy Adams suggested that Gorham might have cast the vote on behalf of his state for Rutledge.33 During most of the time that the Committee of the Whole was in session, it examined the plan that Edmund Randolph had introduced on May 29 on behalf of the Virginia delegation-a plan generally attributed chiefly to James Madison,34 who is accordingly often, although not altogether accurately, designated as the "father" of the Constitution.35 In contrast to the expectations of most delegates, who probably anticipated that the Convention would propose alterations within the existing government under the Articles of Confederation, the Virginia Plan called for a whole new government. In place of a unicameral Congress in which states were equally represented, it proposed a bicameral Congress in which states would be represented in both chambers according to population. It proposed vesting the legislative branch with independent executive and judicial branches. It even proposed that Congress should have the right to veto state laws that it disapproved Risjord, note 12 supra at 633. Ironically, while the Committee of the Whole that operates in today's Congress at least in theory limits debates on amendment to five minutes for and against, [See GUIDE TOCONGRESS, 4th ed., 428 (1991)], the Committee of the Whole at the Constitutional Convention witnessed the longest speech (Hamilton's) of the proceedings. See FARRAND, I, George B. Galloway, Precedents Established in the First Congress, 22 WESTERN POLITICAL QUAR (1958). 33. FARRAND, I, 29, note 1; FARRAND, III, See Robert A. Rutland, The Virginia Plan of1787: James Madison's Outline ofa Model Constitution, THISCONSTITUTION (1984). 35. See, for example, MARVIN MEYERS, ed. THE MINDOFTHE FOUNDER: SOURCES OFTHE POLITICAL THOUGHT OFJAMES MADISON (1973). When an "admiring citizen" called Madison "the writer of the Constitution of the U.S." Madison responded: "You give me a credit to which I have made no claim." He further observed that the document "was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads & many hands." See Rutland,Id. at FARRAND, I, 20-23, contains the series of 15 resolutions that Edmund Randolph introduced outlining the plan. For discussion of the mechanism for congressional veto of state

8 154 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII For just over two weeks, the convention followed a similar procedure. Each day, Washington vacated his seat for Gorham who then chaired the proceedings of the Committee of the Whole and then turned them back to Washington before adjourning. On most days, the Convention's Journal indicated that "Mr. Gorham reported from the Committee that the Committee had made a further progress in the matter to them referred; and had directed him to move that they may have leave to sit again."3? The language was probably pro forma, but continuing reports of progress give an optimistic tenor to the Committee's proceedings. Under generally accepted rules in legislative bodies, including the current congress, "The Committee of the Whole cannot pass a bill."38 This explains why, on June 13, Edmund Randolph, who had earlier introduced the Virginia Plan, introduced a series of 19 resolutions to the full house on behalf of the Committee of Detail. Consistent with Committee discussions to this point, most of the resolutions focused on the legislative branch of government. The first two resolutions indicated that the committee had settled on a government consisting of three branches, including a bicameral congress. Resolutions three and four specified the method of selection of the legislative branch, minimal terms, provision for fixed stipends to be paid from the national treasury, and ineligibility of members to other offices. The fifth resolution would further have vested both houses with the power to originate legislation. Resolution six listed three broadly worded powers of Congress, including a power to void state laws. Resolutions seven and eight provided for representation based on population (with slaves counted as three-fifths of a person) in both houses. Articles nine and ten provided for an executive to be composed of a single individual chosen by congress to a single seven-year term and vested with the power to veto legislation subject to an override by congressional twothirds majorities. Resolutions 11 through 13 dealt with the judicial branch. It was to be selected by the second legislative house during good behavior. Resolution 14 provided for the admission of new states, Resolution 15 for a continuation of Congress until the new government was adopted, Resolution 16 for guaranteeing states a republican form of government; Resolution 17 for an amending process; Resolution 18 for oaths of governmental officials; and Resolution 19 for ratification of the new constitution by special ratifying conventions.s? These resolutions on behalf of the Committee of the Whole represented the high water mark of the Virginia Plan. The following day, New Jersey's William Paterson asked for an adjournment, and on June 15, he provided the outline of a rival New Jersey Plan. Perhaps because of its laws and Madison's disappointment over its failure, see Charles F. Hobson, The Negative on State Laws: James Madison, the Constitution and the Crisis ofrepublican Government, 36 WM. AND MARY QUAR., 3rd Ser., (1979). 37. FARRAND, 1,45; 62;76;93; 115; 130; 148;162; 174,192;209;223;248; GUIDE TO CONGRESS at FARRAND, I,

9 2006 COMMIITEES AT THE CONSTITUTIONAL CONVENTION 155 anticipated importance, Paterson presented the plan before the entire house, which then passed it on to the Committee of the Whole.40 Whereas delegates recognized the Virginia Plan to be an alternative to the Articles of Confederation,41 Paterson introduced the New Jersey Plan as a means of seeing that the existing Articles of Confederation were "revised, corrected & enlarged, as to render the federal Constitution adequate to the exigencies of Government, & the preservation of the Union."42 The plan essentially proposed adding to the existing powers of Congress. Perhaps because most delegates had come to accept the idea advanced in the Virginia Plan that some structural changes were needed,43 the New Jersey proceeded to propose an independent executive and judicial branch. The Plan also laid the foundation for what would become the Supremacy Clause, and provided for the admission of new states, for naturalization, and for extradition. 44 In the following days, delegates contrasted and debated the merits and defects of the two rival plans. This time witnessed a speech of approximately six hours by Alexander Hamilton who argued that neither plan provided adequate powers to the new government, and a vigorous defense of the Virginia Plan by James Madison. At the end of this debate, the states voted 7 to 3 to 1 (divided) to continue with the Virginia Plan.45 Future debates showed that the victory was not as complete as the vote made it appear. The small states continued to challenge the new scheme of representation in Congress. Convention records are silent as to the reasons the Convention abandoned the Committee of Detail on June 20. It seems reasonable to surmise that the delegates recognized that the vote for the Virginia Plan had not resolved differences between the large states and the small ones and that delegates might have hoped that Washington's more august presence might moderate remaining differences. Perhaps there was further distaste for having to decide the issue first in committee and then in the Convention as a whole. Thus, after the Convention took up discussion of the report of the Committee of Detail on August 7, Charles Pinckney proposed that the Convention resolve itself into a committee of the whole. Gorham, who 40. FARRAND, I, Randolph had first introduced the Virginia Plan on May 29, he had introduced it with the following: "Resolved that the articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely. 'common defence, security of liberty and general welfure.'" FARRAND, I, 20. By the next day, the Convention had voted to alter this to read: "Resolved that it is the opinion of this Committee that a national government ought to be established consisting of a supreme Legislative, Judiciary, and Executive." FARRAND, 1, FARRAND, I, Scholars recognize that the Virginia Plan thus Performed an "agenda-setting" function. See Lansky, note 24 supra, at FARRAND, I, For specific links to the supremacy clause, see Robert H. Birkby, Politics ofaccommodation: The Origins ofthe Supremacy Clause, 19 WESTERN PoLITICAL QUAR (1966). 45. FARRAND, I, 313.

10 156 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII had chaired this Committee, was among those who feared that this mechanism would result in delay, and the states rejected the idea,46 although it may have taken an earlier 5 to 4 vote in its favor.s? The Convention did not appoint any other committees during the time that it resolved itself into the Committee of the Whole. Although the notes of each day's proceedings indicated when the Committee of the Whole was in session, there is little else in the record to distinguish the proceedings under the Committee of the Whole from that of the entire convention other than the fact that the Committee recognized that its votes on issues would not be final. 48 Madison did at one point suggest that Delaware, whose delegates had instructions not to compromise the state's equal representation in Congress, might be saved from "embarrassment" if such a matter was discussed in the Committee of the Whole, but his notes also reveal that his proposal "did not appear to satisfy" Delaware's George Read.s? COMMITTEES ON REPRESENTATION IN CONGRESS Committee of Compromise on Representation in Congress Representation has been a key issue throughout U.S. history and was especially important to the Founding Fathers.50 Scholars generally consider the dispute between the more populous and less populous (generally called the large and small) states to have been the most divisive and important at the Convention. Proponents of both sides saw the issue as both a matter of principle and interest. Large state proponents thought it would be unfair if they had the same representation as less populous states. Less populous states were equally adamant that they should not have to part with the equality that they had exercised in Congress under the Articles of Confederation. Although the Committee of the Whole had settled on the Virginia Plan on June 19, discussion continued for almost two weeks on the issue of representation. During this discussion Delaware's Gunning Bedford had heatedly suggested that "The Large States dare not dissolve the confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them 46. FARRAND, 11, FARRAND, II, Even this distinction was not particularly meaningful since rules pennitted the Convention to revote on issues. See FARRAND, I, FARRAND, I, Much of the dispute between the colonies and England had stemmed from the colonists' belief that they were entitled to "actual" representation in Parliament and the British belief that they were "virtually" represented there. See especially, CHARLES A. KROMKOWSKI, RECREATING THE AMERICAN REPUBLIC: RULES OF ApPORTIONMENT, CONSTITUTIONAL CHANGE, AND AMERICAN POLITICAL DEVELOPMENT, (2002) and ROSEMARIE ZAGARRI THE POLITICS OF SIZE: REPRESENTATION IN THE UNITED STATES, (1987).

11 2006 COMMITTEES ATTHE CONSTITUTIONAL CONVENTION 157 by the hand and do them justice."51 Seeking harmony. Benjamin Franklin had unsuccessfully proposed that the Convention should begin its proceedings with prayer. 52 This discussion came to a head on July 2 when states voted 5 to 5 to 1 as to whether states should be equally represented in the upper house. 53 With the convention in virtual stalemate, Charles Cotesworth Pinckney of South Carolina proposed creating a committee with one delegate from each state to resolve the issue.>' Pinckney's proposal set the pattern for most subsequent committees. There was arguably a certain irony in suggesting that a committee in which states were equally represented. was to determine how Congress was to be represented, but the irony was no greater than the fact that the Convention itself accorded each state equal voting weight. 55 Given the tension in the Convention, it is not surprising that the motion to form a committee itself stirred debate. Some delegates focused on the immediate issue and others focused on the respective advantages and disadvantages of committees themselves. Maryland's volatile Luther Martin did not specifically object to forming a committee but warned that "no modifications whatever could reconcile the Smaller States to the least diminution of their equal Sovereignty."56 Connecticut's Roger Sherman was willing to give a committee a try,5? as was Gouverneur Morris, who hoped that such a committee might consider making the Senate more aristocratic and delivered what appears to have been a fairly lengthy speech on the subject.58 Edmund Randolph was willing to accept a committee "though he did not expect much benefit from the expedient."59 Caleb 51. FARRAND, I, FARRAND, I, Contrary to many reports, the delegates appear ultimately to have rejected the idea out of fear that it would lead to speculation by outside observers and because it had no funds to employ a chaplain for this purpose. The Constitution's failure to mention God has long been a subject of controversy, which has stimulated many proposals to add such a reference. See Steward o. Jacoby, The Religious Amendment Movement: God, People and Nation in the Guilded Age, 2 vols. (1984) (unpublished Ph.D. dissertation, University of Michigan). Also see JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, , 2nd ed (2003). 53. FARRAND, I, FARRAND, 1, FARRAND, I, See material tied to note 19 supra. Also see Lansky at FARRAND, I, FARRAND, I, 196, indicates that Sherman had proposed on June 11 "that the proportion of suffrage in the 1st branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more. David B. Robertson has recently highlighted Sherman's important role at the Convention in Madison's Opponents and Constitutional Design, 99 AMER. POLITICAL SCIENCE R 225 (2005). He has elaborated further on this theme in THE CONSTITUTION AND AMERICA'S DESTINY (2005). 58. FARRAND, I, FARRAND, I, 514.

12 158 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII Strong thought a committee was a good idea, as did North Carolina's Hugh Williamson. Williamson specifically addressed the manner in which a committee might come to a resolution that the convention as a whole did not. He thus observed that "as the Come. Wd. Be a smaller body, a compromise would be pursued with more coolness."6o By contrast, James Wilson, who adamantly supported proportional representation in Congress, objected that the Committee "would decide according to that very rule of voting which was opposed on one side."61 He added that "Experience in Congs. Had also proved the inutility of Committees consisting ofmembers from each State."62 New York's John Lansing was not opposed to forming a committee but not very hopeful either.63 Madison. who was as adamant as Wilson in opposition to compromise, did oppose forming such a committee and matched Sherman's arguments for such committees with less sanguine observations from his own experiences: He had rarely seen any other effect than delay from such Committees in Congrs. Any scheme of compromise that could be proposed in the Committee might as easily be proposed in the House; and the report of the Committee when it contained merely the opinion of the Come. would neither shorten the discussion. nor influence the decision of the House.64 By contrast, Elbridge Gerry of Massachusetts did favor such a committee, albeit almost as an act of desperation: "Something must be done, or we shall disappoint not only America, but the whole world."65 The states voted 9 to 2 (with New Jersey and Delaware, both small states, in dissent) to create the committee and 10 to 1 (with Wilson's Pennsylvania in dissent), to appoint one member from each state.66 The Convention appointed the following committee members: Elbridge Gerry of Massachusetts; Oliver Ellsworth of Connecticut; Robert Yates of New York; William Paterson of New Jersey; Benjamin Franklin of Pennsylvania; Gunning Bedford of Delaware; Luther Martin of Maryland; George Mason of Virginia; William Davie of North Carolina; John Rutledge of South Carolina; and Abraham Baldwin of Georgia.67 The Convention adjourned for two days, giving the Committee time to do its work and delegates time to celebrate Independence Day. 60. FARRAND, I, FARRAND, I, FARRAND, I, FARRAND, I, FARRAND, 1, FARRAND, I, FARRAND, I, FARRAND, I, 516. Of these Gerry and Mason stayed to the last day of the Convention and refused to sign the document. Robert Yates and Luther Martin left the Convention early because of their opposition. Thus, a third of the committee consisted of individuals who later identified themselves as Antifederalists. Delegates on committees consisting of one delegate from each state are listed in this paper, as in convention records, from North to South. This is the same manner in which the constitution was signed.

13 2006 COMMITTEES AT THE CONSTITUTIONAL CONVENTION 159 With the possible exception of Luther Martin and Gunning Bedford, delegates appear to have chosen members of the committee for their moderation-benjamin Franklin was especially noted for his conciliatory approach,68 and some of delegates who were most adamantly opposed to any compromise on the issue of representation; notably James Madison and James Wilson, were not selected. Robert Yates, who took notes of the Committee, observed that in considering their charge, committee members concluded that "they were so equally divided on the important question of representation in the two branches, that the idea of a conciliatory adjustment must have been in contemplation of the house in the appointment of this committee."69 Modem scholars have concurred: It thus seems clear that the main element of the committee report- PR in one house and equality in the other-was not only expected before the committee was appointed but was also expected to be approved. The committee was needed only to formulate the already obvious solution to the impasse. From the landed states their most flexible spokesmen were needed, not their strongest advocates to carry on the conflict.70 The Committee selected Gerry as chairman and attempted to split the differences between the large and small states apparently working from a motion by Franklin."! It proposed granting each state one representative in the House for each 40,000 inhabitants and a minimum of one. Similarly, it revived a proposal that Gerry had first proposed on June 13,72 but which the Committee of the Whole had rejected, providing that all bills for raising revenue should originate in the House.73 Luther Martin later found it necessary to justify how he could have joined in such a compromise only later to oppose adoption of the Constitution. Explaining that "upon this compromise, a great number of the members so far engaged themselves, that, if the system was progressed upon agreeable to the terms of compromise, they would lend it their names, by signing it, and would not actively oppose it, if their States should appear inclined to adopt it,"74 he indicated that his own approach 68. Thus, on June 30, Franklin had observed that "When a broad table is to be made, and the edges [of planks do not fit] the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition." FARRAND, I, 488. For Franklin's more general role, see WILLIAM G. CARR, THE OLDEST DELEGATE: FRANKLIN IN THE CONSTITUTIONAL CONVENTION, FARRAND, I, Calvin Jillson and Thorton Anderson, Voting Bloc Analysis in the Constitutional Convention: Implications for an Interpretation ofthe Connecticut Compromise, 31 WESTERN POLITICAL QUAR. 547 (1978). 71. FARRAND~ I, 526. Madison further observed that the Committee had rejected an arguably promising motion by Roger Sherman that would have provided "that each State should have an equal vote in the 2d branch; provided that no decision therein should prevail unless the majority of States concurring should also comprise a majority of the inhabitants of the U. States." 72. FARRAND, I, FARRAND, I, FARRAND, III, 190.

14 160 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII has been less committal: Some, however, in which number was myself, who joined in the report, and agreed to proceed upon those principles and see what kind ofa system would ultimately be formed upon it, yet reserved to themselves, in the most explicit manner, the right ofjinally giving a solemn dissent to the system, if it was thought by them inconsistent with the freedom and happiness of their country. This, Sir, will account why the members of the convention so generally signed their names to the system; not because they thought it a proper one; not because they thoroughly approved, or were unanimous for it; but because they thought it better than the system attempted to be forced upon them.75 The Committee made its report on July 5. Responding to a question by Nathaniel Gorham as to why the Committee had bundled the issue of representation with that of originating money bills, Gerry responded that members had "agreed to the Report merely in order that some ground of accommodation might be proposed. Those opposed to the equality of votes have only assented conditionally; and if the other side do not generally agree will not be under any obligation to support the Report."76 The Convention did not immediately embrace the compromise that the Committee proposed. Delegates from the larger states generally professed to regard the limitation on the introduction of money bills to the lower house to be fairly trivial. Nonetheless, the committee recommendation seemed to stick better than most previous proposals because it had committee sanction behind it. Perhaps bolstered by the apparent success of the previous committee, the Convention decided on July 6 to appoint yet another committee to settle on the initial apportionment of the House. Committee on Original Apportionment of Congress Gouverneur Morris proposed on Friday, July 6 to create a committee to decide on the initial apportionment of Congress, with the understanding that future Congresses could change this number."? After considerable discussion over whether a committee could safely fix such a ratio, the states voted for the measure by a vote of 7 to 3 to 1.78 Perhaps because the Convention considered this matter to be largely technical in nature, it settled on a smaller committee of five, appointing Gouverneur Morris of Pennsylvania, Nathaniel Gorham of Massachusetts, Edmund Randolph of Virginia, John Rutledge of South Carolina, and Rufus King of Massachusetts.Z? Later in the day, the Convention decided to postpone further consideration of the proposed state equality of votes in the Senate 75. FARRAND, III, 190. Underlining in original. 76. FARRAND, I, FARRAND, I, FARRAND, I, FARRAND, I, 542. Delegates are listed according to Convention records (although Madison originally had Gorham's name prior to Morris's). It seems likely that members are thereby listed according to the number of votes they received-speculation strengthened by the likelihood that the person making the motion for the committee might be considered the most suitable for serving on it.

15 2006 COMMITTEES AT THE CONSTITUTIONAL CONVENTION 161 rather than committing this matter to the same committee.80 This Committee was notable for at least two reasons. First, it had a distinct large-state tilt. Second, it was the only committee at the convention in which one state, Massachusetts, had two members. Apparently delegates cast votes in this case with little regard to state representation. The Committee, chaired by Gouverneur Morris, delivered its report to the convention on July 9. It proposed an initial House of 56 members, with Congress free to add additional members and to reallocate representatives in cases where states split. Initial representation was to be as follows: Rhode Island and Delaware were to have one representative; New Hampshire and Georgia were to have two: New Jersey was to be given three; Connecticut and Maryland were to have four; New York, North Carolina and South Carolina were each to have five; Massachusetts was to have seven; Pennsylvania was to have eight, and Virginia was to have nine.s! It appears that Committee members had largely guessed at the populations of existing states and that they had attempted to balance slaves roughly according to the three-fifths formula.82 Luther Martin wanted specifically to know whether the Committee had been "guided in the ratio, by the wealth or number of inhabitants of the States, or by both; noting its variations from former apportionment by Congs."83 Subsequently splitting the issue of how Congress would be initially apportioned from the issue of whether Congress should be able to alter this ratio, Sherman then moved to send the first issue to yet another committee. Morris, with no apparent propriety interest in the recommendation of the committee of five that he had just chaired, seconded the motion "observing that this was the only case in which such Committees were useful"84-presumably referring to the fairly technical nature of the assignment. Randolph, who had also served on the first committee, also favored the creation of the second FARRAND, I, FARRAND, I, Toward the end of the Convention, the delegates decided to allocate one representative for every 30,000 inhabitants rather than one for every 40,000. In part because of this, the composition of the House of Representatives changed significantly after the first census of 1790, rising from 65 to 106 members. The addition of Kentucky and Vermont (each with two representatives) added four seats. Other gains were as follows: Connecticut representation jumped from 5 to 7; Maryland's from 6 to 8; that of Massachusetts from 8 to 14; New Hampshire's from 3 to 4; New Jersey's from 4 to 5; New York's from 6 to 10; North Carolina's from 5 to 10; Pennsylvania's from 8 to 13; Rhode Island's from 1 to 2; South Carolina's from 5 to 6; and Virginia's from 10 to 19. Georgia dropped from 3 representatives to 2, and Delaware retained its single representative. See GUIDE TO CONGRESS, at FARRAND, I FARRAND, I, FARRAND, I, 561.

16 162 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII Committee to Reconsider Proportional Representation By day's end, the Convention had agreed to appoint another committee to reexamine initial state representation. Perhaps hoping to provide somewhat greater solidarity to this committee's recommendations, this time the convention chose a member from each state present. Committee members were as follows: Rufus King of Massachusetts; Roger Sherman of Connecticut; Robert Yates of New York; David Brearly of New Jersey; Gouverneur Morris of Pennsylvania; George Read of Delaware; Daniel Carroll of Maryland; James Madison, Jr. of Virginia; Hugh Williamson of North Carolina; John Rutledge of South Carolina; and William Houston of Georgia. Yates and Rutledge had served on the earlier committee of eleven and King, Morris, and Rutledge on the committee of five. King chaired the committee, which reported to the convention the following day. It raised the initial representation of the House from 56 to 65. To this end, it proposed: raising New Hampshire's allocation from two to three; that of Massachusetts from seven to eight; Connecticut's from four to five; New York's from five to six; New Jersey's from three to four; Maryland's from four to six; Virginia's from nine to ten; and Georgia's from two to three. 86 Despite a number of attempts to change this number, it was the one that ultimately emerged from the convention. suggesting that the weight of the committee recommendation had been influential. Representation in the House was eventually tied to the rate of direct taxation. When, on July 13, Read claimed that he had sensed "a backwardness in some of the members from the large States, to take their full proportion of Representatives," and voiced his suspicion that it must have been tied to a desire to keep the states' taxes down. Gouverneur Morris and James Madison both denied the charge by pointing to actions by some committee members that suggested otherwise.e? Analysis and Summary of Three Committees on Representation The convention did not settle the issue of representation until July 16. The vote was a narrow 5 to 4 to 1,88 which essentially incorporated the compromises that the three committees had formulated. Paterson misinterpreted, possibly purposely,89 Randolph's motion to adjourn for the day as a motion to adjourn sine die, indicating that he was willing to go back to the people for further instructions that he thought would vindicate the small states, but Randolph and other large state representatives who projected to the compromise had no such intention FARRAND, I, FARRAND, 1, FARRAND, II, John E. O'CONNOR, WILl1AM PATERSON: LAWYER AND STATESMAN, (1979). 90. FARRAND, II, 18, Randolph thus said that: "For these reasons he wished the Convention might adjourn, that the large States might consider the steps proper to be taken

17 2006 COMMITTEES AT THE CONSTITUTIONAL CONVENTION 163 Madison reports that members of the large states, joined by some delegates from the small ones, met the following morning to consult. While some favored continuing opposition to equal representation in the Senate, other seemed "inclined to yield to the smaller States, and to concur in such an Act however imperfect & exceptionable, as might be agreed on by the Convention as a body, tho' decided by a bare majority of States and by a minority of the people of the U. States."91 He further observed that "It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a Union of the larger, in any plan whatever agst. The equality of votes in the 2d. branch."92 Perhaps the convention as a whole could have formulated proposals similar to those of the committees, but the three committees that met, especially the first, appear to have facilitated compromise. COMMITTEE OF DETAIL Once the Convention settled the issue of representation, it faced smoother sailing on other issues. Just as the Committee of the Whole had found it useful to compile all its motions into a single set of resolutions. so too Elbridge Gerry moved on July 23 that the Convention should refer "the proceedings of the Convention for the establishment of a Natl. Govt. (except the part relating to the Executive)" to a Committee, which would prepare a report. 93 The states agreed unanimously to this proposal but rejected proposals for committees of ten or seven in favor of a committee of five,94 presumably in the belief that a smaller committee would be more appropriate for such editorial work. The following day, the delegates chose John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathanial Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania to serve on this committee. 95 Each member of the committee was a lawyer, and was thus presumably familiar with drafting documents. The Committee arguably overrepresented both the South and the larger states, perhaps indicating that, with the central issue of representain the present solemn crisis of the business, and that the small States might also deliberate on the means of conciliation" Paterson responded, also at 18, that" it was high time for the Convention to adjourn that the rule of secrecy ought to be rescinded and that our Constituents should be consulted." After inquiry by Charles Cotesworth Pinckney, Randolph responded that he "had never entertained an idea of an adjourmnent sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. He had in view merely an adjournment till tomorrow in order that some conciliatory experiment might if possible be devised, and that in the smaller States should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary." 91. FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II, 97.

18 164 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII tion now resolved, the convention delegates were no longer as concerned about the splits between these regions. Rutledge, who had served on each of the previous three committees, chaired this one. The Convention continued debating the presidency through July 26 and then adjourned until August 6 so that the committee would have time to prepare its report. The Committee apparently drew not only from convention deliberations but also from the Pinckney Plan and from proposals that members of Congress had introduced under the Articles of Confederation.96 In addition to other documents, the committee prepared at least two drafts; Randolph authored the first and Wilson the second.v? It then presented its report to the Convention on August 6. While he served on the committee, Edmund Randolph articulated two principles that guided the committee's work (and arguably of that of the later Committee of Style and Arrangement). He thus observed that it was important: 1. To insert essential principles only, lest the operations of government should [be] clogged by rendering those provisions permanent and alterable, which ought to be accommodated to times and events. And 2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the (several) states.98 Committee members appear largely to have followed this advice.99 Those familiar with the current u.s. Constitution would definitely see the outline of this document in the preamble and 23 separate articles that the committee reported to the Convention.tw Most notably, this document begins with the words "We the people," before listing the states individually.101 Article I lists the government as "The United States of America," and Article II indicates that this government would consist of three branches. Articles III through X deal with the legislative branch (describing provisions relative to the House of Representatives and then the Senate), with Article VIII containing the supremacy clause; Article X deals with the executive branch; Article XI with the judicial branch; Articles XII through XVIII with matters of state-federal relations; Article XIX with the amending process; Article XX with oaths of office; Articles 96. MARGOT C. MABIE, THE CONSTITUTION: REFLECTION OF A CHANGING NATION, (1987). 97. CHARLES C. THACH, THE CREATION OF THE PRESIDENCY, : STUDY IN CONSTITUTIONAL HISTORY (1922). 98. FARRAND, 11, Scholars have generally attributed the durability of the U.S. Constitution to its parsimony. See, for example, Akhil Reed Amar, Architexture IND.. L (2002). For a recent critique of this view, see Christopher W. Hammons, Was James Madison Wrong? Rethinking the American Preference for Short, Framework-Oriented Constitutions" 93 AMER. POLITICAL SCIENCE REM (1999) The Committee had two articles labeled VI. The analysis here is based on corrected numbering FARRAND, II, 177. This preamble does not list the other purposes that today's preamble lists, although it does include the words "ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity."

19 2006 COMMITTEES AT THE CONSTITUTIONAL CONVENTION 165 XXI and XXII with ratification of the Constitution; and Article XXIII with the transition to a new government. 102 In a thorough study of the Committee of Detail, John Hueston has argued that the Committee of Detail significantly weakened the new national government both "by enumerating national powers and adding states' rights."103 The first part of the argument is not as strong as the second since it rests on the premise, 104 which all delegates may not have shared, that all powers not explicitly granted would be reserved to the states. 105 Moreover, the expanded list of powers includes the necessary and proper clause,106 which has subsequently become the basis for implied powers. 107 Hueston is on stronger ground when pointing to provisions that specifically enhanced states' rights. These include: allowing the federal government only to give aid against "domestic violence" "on the application of its Legislature" (Article XVIII); entrusting states with the responsibility to pay members of Congress (Article VII, Section 10); permitting states to establish the time and places for congressional elections (VI, Section 1); allowing states to set uniform property qualifications for members of Congress (VI, Section 2); and granting state executives the right to call elections for house vacancies (IV, Section 7). Hueston also believes that the Committee of Detail weakened the federal judiciary by providing that criminal trials shall be held "in the state where they shall be committed" (Article XI, Section 4). Thach further argues that the Committee of Detail significantly strengthened the presidency. He explains: The executive which had gone into the committee with only the appointing power, the veto power, and the power to execute the laws, came out, not only with additional powers, but with all of them granted in terms which left no loophole for subsequent legislative interference. What have come to be known as the political powers were now the President's and the President's alone FARRAND, II, John C. Heuston. Altering the Course ofthe Constitutional Convention: The Role of the Committee ofdetail in Establishing the Balance ofstate and Federal Powers. 100 YALE L. J. 766 (1990) Id. at As John Marshall observed in McCulloch v. Mary land, 4 Wheat. (17 U.S.) 316 (1819), unlike the corresponding Article in the Articles of Confederation (article II), the U.S. Constitution, Amendment 10, omits the word "expressly." 106. FARRAND, 14, 182. See last provision of Sect. 1 of Article VII See, especially, McCulloch v. Maryland, 4 Wheat (17 U.S.) (1819). It should be observed, however, that the clause received relatively little attention at the Convention, and that, when Antifederalists pointed to fears that it would be used as the basis of expanded national powers, Federalists largely dismissed such concerns as in Federalist No. 33 where Alexander Hamilton observed that "it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated as if they were repeated in every article." See ALEXANDER HAMILTON, JAMES MADISON, AND JOHN JAY, THEFEDERALIST PAPERS (Clinton Rossiter, ed) 202 (1961) THACH, 116.

20 166 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII Given the important work of the committee and its limited membership, it is perhaps surprising that it has not bred conspiracy theories. The clearest indication that fellow members of the Convention viewed what the committee had done as consistent with its own instructions is the fact that on August 18, the Convention voted to send a number of proposed additional congressional powers to the Committee of Detail, making it as close to a standing committee as the Convention commissioned. l09 The convention specifically asked the Committee to consider adding powers to deal with un-appropriated land, with governing such territories, with regulating Indian affairs, with governing the seat of government, with issuing corporate charters, with securing copyrights, with establishing a national university, with advancing useful knowledge, and for erecting and holding forts. 110 On August 20, the convention submitted further resolutions including provisions relative to privileges of members of Congress, the writ of habeas corpus, liberty of the press, troops in peacetime, military subordination to civilian authorities, religious tests, the great seal, commissions, jurisdiction of the Supreme Court, III and, at Charles Pinckney's request, a council of state. I 12 The committee reported back to the Convention on August 22. It added some, but not all, the powers proposed and ignored a number of provisions, like those related to freedom of the press and quartering troops in private homes, that were later incorporated into the bill of Rights. In a measure that the Convention ultimately rejected, it also proposed creating a Privy Council to advise the president. I 13 COMMITTEE ON STATE DEBTS AND MILITIA One of the more emotional issues at the Constitutional Convention and in the first Congress that met under the new document concerned the assumption of state debts. While there was an obvious advantage in getting states off to a good financial footing, the issue was controversial because states that had already paid down their debts did not want to assume part of the responsibility for debts of states that had not paid them. Responding to a motion by John Rutledge, on Saturday, August 18, the Convention accordingly created a committee to resolve this issue. Like two previous committees, the Convention decided to appoint one delegate from each state. Those appointed were: John Langdon of New Hampshire, Rufus King of Massachusetts, Roger Sherman of Connecticut; Robert Livingston of New Jersey; George Clymer of Pennsylvania; John Dickinson of Delaware; James McHenry of Maryland; George Mason of Virginia, Hugh Williamson of North 109. FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II,

21 2006 COMMITIEES AT THE CONSTITUTIONALCONVENTION 167 Carolina, Charles Cotesworth Pinckney of South Carolina, and Abraham Baldwin of Georgia. 114 This committee thus now included a representative from New Hampshire, whose delegates arrived to the Convention late, but no longer included New York, whose delegates had left. Later in the day, the Convention also entrusted this committee with the responsibility of dividing authority over militias between Congress and the states.u> Governor Livingston of New Jersey submitted the committee report to the convention on Tuesday, August 21. The committee proposed granting Congress the right to discharge state debts without requiring that it do so,116 thus effectively deferring the decision for resolution in Congress. In what is often cited as the first case of "logrolling," Alexander Hamilton, and other advocates of federal assumption of state debts, eventually consented to Southern wishes to locate the nation's capital at its present location in exchange for federal debt assumption. II? The committee further provided that Congress would have the power "to make laws for organizing arming and disciplining the Militia, and for governing such part of them as may be employed in the service of the U-S" while "reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the U. States."118 The delegates postponed consideration of these proposals and accepted them on August COMMITTEE ON SLAVE TRADE AND NAVIGATION The issues of slave importation and navigation laws were among those that divided the North and South. Delegates from Georgia and South Carolina insisted that they should be able to continue to import slaves and feared that navigation laws could be used to discriminate against them. Although Gouverneur Morris had delivered one of the convention's most impassioned speeches against slavery,120 he suggested on August 22 that the two issues "may form a bargain among the Northern & Southern States."121 After heated discussion, the delegates agreed to commit both measures to the committee. 122 The convention again resorted to a committee of one member from each state; eight of the delegates on this committee were the same as those of the Committee on State Debts and 114. FARRAND, II, FARRAND, II, FARRAND, II, RICHARD B. BERNSTEIN WITH JEROME AGEL, AMENDING AMERICA: IF WE LoVE THE CONSTITUTION So MUCH, WHY Do WE KEEP TRYING To CHANGE IT? (1993) FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II,

22 168 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII Militia, and it had the same chair. The new committee consisted of the following: John Langdon of New Hampshire, Rufus King of Massachusetts, William Samuel Johnson of Connecticut, William Livingston of New Jersey, George Clymer of Pennsylvania, John Dickinson of Delaware, Luther Martin of Maryland, James Madison, Jr., of Virginia, Hugh Williamson of North Carolina, Charles Cotesworth Pinckney of South Carolina, and Abraham Baldwin of Georgia.l23 Baldwin's appointment might have been especially important for facilitating compromise since he had only been living in Georgia for three years and had moved there from Connecticut. 124 The committee submitted its report to the convention two days later. The committee recommended allowing states that chose to do so to continue to import slaves until 1800, a date the convention eventually changed to It further proposed keeping the requirement levying capitation taxes according to the census but deleting the requirement (favored by the South) requiring that navigation acts be adopted by a two-thirds majority of both houses.l25 Morris's view that the two issues could be compromised appeared prophetic. COMMITTEE ON COMMERCIAL DISCRIMINATION On August 25, the delegates chose to establish another eleven-man committee on issues related to commercial discrimination. As in the case of the committees immediately preceding, members do not appear to have argued about the utility or lack of utility of such committees. Moreover, perhaps because of the rather specialized subject matter of the committee, this one was not a virtual carbon copy of the previous two. The convention appointed: John Langdon of New Hampshire; Nathaniel Gorham of Massachusetts; Roger Sherman of Connecticut; Jonathan Dayton of New Jersey, Thomas Fitzsimmons of Pennsylvania, George Read of Delaware, Daniel Carroll of Maryland, George Mason of Virginia, Hugh Williamson of North Carolina, Pierce Butler of South Carolina, and William Few of Georgia. 126 The committee delivered its report on August 28 and suggested that no commercial or revenue provision shall "give preference to the ports of one State over those of another or oblige Vessels bound to or from any State to enter, clear, or pay duties in another."127 It also provided that "all 123. FARRAND, II, Albert Saye has argued in "Georgia: Security through Union," in PATRICK T. CONLEY AND JOHN P. KAMINSKI, eds. THE CONSTITUTION AND THE STATES: THE ROLE OF THE ORIGINAL THIRTEEN IN THE FRAMING AND ADOPTION OF THE FEDERAL CONSTITUTION (1988), 85, that Baldwin had previously purposely split his state's vote on representation in the Senate (voting with those who favored equality in that body) in order to keep the Convention from dissolving FARRAND, II, FARRAND, II, FARRAND, II, 434.

23 2006 COMMIITEES AT THE CONSTITUTIONAL CONVENTION 169 tonnage, duties, imposts, and excises, laid by the Legislature shall be uniform throughout the United States."128 The convention ultimately incorporated these provisions into Article I, Sections 9 and 10 of the Constitution. COMMITTEE ON INTERSTATE COMITY AND BANKRUPTCY During a discussion on Wednesday, August 29 of what was to become the full faith and credit clause, Charles Pinckney proposed committing that provision, along with a provision on bankruptcy and damages arising "on the protest of foreign bills of exchange," to a committee.129 The states voted 9 to 2 to do so, but for an unexplained reason (perhaps related to the relatively technical nature of the issues), the delegates chose to revert to a committee of five rather than the committee of a member from each state, which had almost become the norm. The convention chose John Rutledge of South Carolina (who had headed the earlier committee of Detail and would head this one as well), Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, James Wilson of Pennsylvania, and William Samuel Johnson of Connecticut.130 On Saturday, September 1, the committee recommended adding a provision granting Congress power to establish uniform rules on bankruptcy and to add a full faith and credit clause131 The convention largely accepted these proposals two days later.l32 Apart from the fact that both issues were fairly technical, it is not altogether clear why the convention thought a committee was needed to resolve these issues, but it succeeded in doing so. Congress did not, however, exercise its power to draw up national legislation on bankruptcy until COMMITTEE ON POSTPONED MATTERS (COMMITTEE ON UNFINISHED PARTS) By August 31, the Convention was in a position somewhat similar to the one it had faced when it created the Committee of Detail. In order to facilitate debates, it had postponed a number of matters, the most important of which was the selection of the president. At the end of the day, Connecticut's Roger Sherman proposed that the convention create a com FARRAND, II, FARRAND, II, FARRAND, II, 448. Especially in cases where committees consist of a member from each state, committee members are listed from North to South. This author surmises, but does not know for sure, that the members here are listed according to the respective votes that they received. If so, this would be further confirmation that the Convention placed special faith in the earlier work of the Committee of Detail, which Rutledge had headed FARRAND, II, FARRAND, II, Peter J. Coleman, Bankruptcy and Insolvency Legislation" in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (Kermit Hall, ed.) (1982).

24 170 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII mittee to deal with such matters, and the convention resumed the practice of appointing a committee with a member from each state. It selected Nicholas Gilman of New Hampshire; Rufus King of Massachusetts; Roger Sherman of Connecticut; Jonathan Brearly of New Jersey; Gouvernuer Morris of Pennsylvania; John Dickinson of Delaware; Daniel Carroll of Maryland; James Madison, Jr. of Virginia; Hugh Williamson of North Carolina; Pierce Butler of South Carolina; and Abraham Baldwin of Georgia.134 Brearly served as the committee chairman. This committee was sometimes designated as the Committee on Unfinished Parts. The committee issued a partial report the next day. It proposed limiting the eligibility of members of Congress to other civil offices during the time for which they were elected and prohibited individuals from jointly holding other offices and serving in Congress.135 In a much longer report on September 4, the Committee proposed a number of alterations in the powers of Congress.136 It proposed that a conviction on impeachment charges would require a two-thirds vote; specified the powers of the president and vice-president; articulated the rules for treaty-making; and permitted the president to get opinions from cabinet officers in writing.u? The committee's most important work was its invention of the electoral college mechanism for selecting the president. Although the presidential election of 2000 highlighted less democratic and more problematic features of this mechanism,138 it remains one of the convention's most innovative achievements.139 In inventing the electoral college, the Convention also invented the vice-presidency. 140 By providing a method for selecting a president by a temporary body (rather than by a sitting Congress, which a president might seek to corrupt to achieve re-election) apart from Congress, the convention could allow for presidential re-eligibility. The complexity of the electoral college makes it less likely that it could have emerged from full floor debate. Although Brearly chaired the Committee, Gouverneur Morris took the lead in outlining the justifica FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II, The author resists the temptation to cite the numerous analyses of the 2000 presidential election, many of which burden his own shelves, in part because so many of the authors found it difficult to extract the strengths and weaknesses of the mechanism from the results of the particular election that they were analyzing. The best critique of the mechanism is found in GEORGE C. EDWARDS III, WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA (2004) See Shlomo Slonin, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. OF AMER. HIST (1986). Also see John P. Roche, The Founding Fathers: A Reform Caucus in Action," 55 AMER. POLITICAL SCIENCE R (1961) North Carolina's Hugh Williamson thus observed that "such an officer as vice President was not wanted. He was introduced ouly for the sake of a valuable mode of election which required two to be chosen at the same time." Farrand, 11,537.

25 2006 COMMITIEES AT THE CONSTITUTIONAL CONVENTION 171 tions for the proposed method of selecting the president.t-t! Virginia's George Mason had qualms about the proposal and eventually decided against signing the Constitution, but he probably reflected the sentiments of many delegates when he "confessed that the plan of the Committee had removed some capital objections, particularly the danger of cabal and corruption."142 At the end of the day, the Convention further entrusted the committee with the responsibility of preparing a report on how to defray convention expenses)43 On September 5, it suggested that the convention ask Congress for monies for the secretary and other officers of the convention, and it agreed to do so)44 COMMITTEE OF STYLE AND ARRANGEMENT Twice before the Convention had used committees to compile, arrange, and revise convention proposals into a series of resolutions so it is not surprising that it created a Committee of Style and Arrangement on September 8 to put the final touches on the emerging constitution. As in the case of the earlier Committee of Detail, the delegates decided to appoint five members. They were Dr. William Samuel Johnson of Connecticut; Alexander Hamilton (who had absented himself through much of the convention) of New York; Gouverneur Morris of Pennsylvania, James Madison, Jr. of Virginia, and Rufus King of Massachusetts. 145 Although Johnson was the designated chair of the committee, Morris appears to have been the most influential member. With considerable pride, he thus observed in a letter to Timothy Pickering of December 22, 1814: "that instrument [the Constitution] was written by the fingers, which wrote this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit." FARRAND, II, 500. The Committee on Postponed Matters had proposed that the U.S. Senate would settle cases in which no candidate got a majority of the votes, arguably a sop to the small states. Somewhat later, the Convention changed this so that the House would make this choice, but that each state would (as in the Senate) cast a single vote. See Calvin C. Jillson and Cecil L. Eubanks, The Political Structure of Constitution Making: The Federal Convention of1787," 28 AMER. J. OFPOLITICAL SCIENCE (1984) FARRAND, II, FARRAND, II, FARRAND, II, FARRAND, II, 553. Although convention notes do not specifically say so, it again seems reasonable to assume that the delegates were listed in the order of votes they received. Johnson was president of King's College (today's Columbia), Hamilton had been known for his pamphlets during the Revolutionary War, and the other three delegates were all known for their ability as draftsmen, so they may have been elected as much for their perceived expertise as on the basis of their personal popularity at the convention. Significantly, the committee included at least one delegate from each of the three major regions of the country FARRAND, III, 420. James Madison, a fellow committee member, confmned Morris's contribution at FARRAND, III, 499: The finish given to the style and arrangement of the Constitution fairly belongs to the pen

26 172 THE AMERICANJOURNAL OF LEGAL HISTORY Vol. XLVIII The Committee reduced 23 articles into the seven with which contemporary scholars are familiar. Morris's most important stylistic contribution to the constitution was the Preamble where he lengthened the phrase "We the People" to "We the People of the United States" and omitted the names of individual states. Although this was chiefly designed to avoid the problem that would ensue if, as initially happened, the new government went into effect before being ratified by all 13 states, the phraseology also gave the document a more nationalistic focus.t-? One of the fascinating stories that grew out of the Committee of Style and Arrangement was the charge later leveled by Congressman Albert Gallatin, who had not, however, attended the Convention. Gallatin claimed that Morris had attempted to substitute a semicolon for a comma in the clause dealing with congressional imposition of taxes in an attempt to enlarge national powers but that Connecticut's Roger Sherman had detected this alteration and alerted to convention to it. Although the story appears to be apocryphal,148 it demonstrates a potential downside to committees, which is much greater with the large omnibus bills that the current Congress often adopts than it was at the Convention-the possibility that an individual will be able to slip a modification by a smaller number of colleagues that a larger body would not catch. 149 In addition to finalizing the language of the Constitution, the Committee of Style and Arrangement appears also to have written the Letter of Transmittal to Congress150 that accompanied the document.151 Ralph Ketcham has attributed primary authorship of the letter to James Madison,152 who was a member of the committee. of Mr. Morris; the task having, probably, been handed over to him by the chairman of the Committee, himself a highly respectable member, and with the ready concurrence of the others. A better choice could not have been made, as the performance of the task proved. It is true, that the state of the materials, consisting of a reported draft in detail, and subsequent resolutions accurately penned, and falling easily into their proper places, was a good preparation for the symmetry and phraseology of the instrument but there was sufficient room for the talents and taste stamped by the author on the face of it. The alterations made by the Committee are not recollected. They were not such, as to impair the merit of the composition. Those, verbal and others made in the Convention may be gathered from the Journal, and will be found also to leave that merit altogether unimpaired RICHARD BROOKHISER, GENTLEMAN REVOLUTIONARY: GOUVERNEUR MORRIS-THE RAKE WHO WROTE THE CONSTITUTION (2003) Id. at A variant of this problem emerged in 2004 when it was discovered that key lawmakers on the House and Senate Appropriations Committees had been given authority, in a massive spending bill of some 3000 pages, to examine individual tax returns. Committee members claimed the provision was a mistake and blamed it on congressional staffers. See Alan Fram, Democrats will block quick House repeal of tax return provisi on, AP. November Accessed through Lexis Nexis on 3/11/ FARRAND, II, For an analysis of this letter and its implications for federalism, see Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REv. (1995) RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 230 (1971).

27 2006 COMMITTEES AT THE CONSTITUTIONAL CONVENTION 173 Committee on Sumptuary Legislation The last committee that the convention appointed was the most illusive. On August 20,153 and again on September 13,154 Virginia's George Mason (one of three remaining delegates who would decide not to sign the constitution) had proposed vesting Congress with power to enact sumptuary legislation designed to encourage frugality.155 It was arguably ironic that a man who lived at Gunston Hall, one of the finest plantations in Virginia, would have expressed such concern,156 but after Connecticut's Dr. Johnson seconded the motion on September 13, the Convention unanimously appointed a committee of five to examine the matter. Members include Mason, Franklin, Dickinson, Johnson, and Livingston. 157 Here the records of the convention on the subject end. The fact that there are no further references to the committee appears to indicate either that it did not meet or that it met and could come to no agreement. It would be interesting to know whether members of the convention largely anticipated this outcome and simply saw the creation of the committee as a means of throwing a sop to Mason, but in the absence of further evidence on the subject, speculation on the matter is largely fruitless. Proposed Committee to Compose an Address On September 15, two days before the delegates signed the Constitution, Maryland's Daniel Carroll expressed concern that the convention had not prepared an address to accompany the Constitution, and he proposed establishing a committee for this purpose. 158 John Rutledge of South Carolina objected that a committee would lead to "delay"159 and that it would be improper for the Convention to prepare such an address until it knew whether Congress would approve of its recommendations (Rutledge suggested that Congress might want to write such an address 153. FARRAND, II, FARRAND, II, For the theory behind such legislation, see Peter Goodrich, Signs Taken for Wonders: Community Identify, and a History of Sumptuary Laws." 23 LAW & SOCIAL INQUIRY (1998) This was, however, arguably no more ironic than the fact that Mason, an owner of many slaves, gave one of the most impassioned speeches against this institution at the convention. See FARRAND, II, 370. After Mason remarked that "every master of slaves is born a petty tyrant," Connecticut's Oliver Ellsworth, who may have resented Mason's condemnation of northern merchants who had participated in the slave trade, observed, with apparent sarcasm, that "As he had never owned a slave [he] could not judge of the effects of slavery on character." FARRAND, FARRAND, II, FARRAND, II, FARRAND, II, 196 indicates that a similar concern had deterred the Convention from reconstituting itself into a Committee of Detail on August 7.

28 174 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII itself).160 Perhaps for similar reasons, Connecticut's Roger Sherman also thought that an address would be "both unnecessary and improper," and the Convention rejected Carroll's proposal by a vote of 6 to 4 to In a letter published in March 1788, Luther Martin also indicated that he had considered proposing a committee to draft a bill of rights, but further indicated that he did not actually introduce it: A very few days before I left the Convention, I shewed to an honorable member sitting by me a proposition, which I then had in my hand, couched in the following words; "Resolved that a committee be appointed to prepare and report a bill of rights, to be prefixed to the proposed Constitution," and I then would instantly have agreed to second the motion, to do which he hesitated, not as I understand from any objection to the measure, but from a conviction to his own mind that the motion would be in vain. 162 Summary and Further Reflections The Constitutional Convention of 1787 utilized a Committee of the Whole shortly after it convened and subsequently appointed 12 committees, 11 of which made reports,163 and rejected the formation of at least one other. Although all the committees were ad hoc,164 the Committee of Detail came close to a standing committee in that the delegates referred matters to it over a period of time. Of the twelve committees that the Convention appointed, six had 11 members, five had five members, and one had three members. Tracing committees through convention debates is more difficult than this article might indicate because the convention typically designated committees by their numbers (the committee of five, the committee of 11, or the committee of a member of each state-sometimes also called a "grand" committee) rather than by the names that the author of this article has applied. The Convention relied more heavily on committees the longer it met. The Rules Committee and the Committee of the Whole were the only two committees the convention used during the first month. The Convention appointed three committees, all involving congressional representation, from July 2 through July 9. The Committee of Detail was appointed on July 24 and reported on August 6. The Convention appointed five committees between August 18 and August 31, and two in September. Lansky observes that "As the Convention dragged on, the Framers turned more 160. FARRAND, II, FARRAND, II, PAUL S. CLARKSON AND R. SAMUEL lett, LUTHER MARTIN OF MARYLAND 133 Quoting Maryland Journal, 21 March It seems unusual that George Mason, who proposed a committee on sumptuary legislation, did not take such an initiative himself Hueston's analysis, note 101 supra, at 780, n. 116 and 117, although more thorough than most, is not completely accurate. He omits the Committee of Detail and the Committee on the Original Apportionment of Congress, adds a committee to determine apportionment on the House that never existed, and sometimes equates the assignment of an issue to an existing committee with the creation of a new one Lansky, note 24 supra at 337.

29 2006 COMMITI'EES AT THE CONSTITUTIONAL CONVENTION 175 and more frequently to committees to help move things along at a faster pace, and to find valueadding creative solutions trusting that in smaller groups of moderate and well-chosen delegates the tasks would be well carried out',165 Most committees reported back to the convention within a day or two, diffusing occasional concerns that committees might delay, rather than expedite, the work of the convention. The Committee on the Original Apportionment of Congress was the only committee to have two members from the same state. Rhode Island did not send any delegates to the convention so it was not represented on any committees. Because delegates from New York left early (with Hamilton returning near the end of the convention to sign the Constitution), it was underrepresented on committees as was New Hampshire, whose members arrived late; each state had members on only four committees. The delegates from New Hampshire arrived not long after the delegates from New York had left, so all committees composed of a member of each state ended up with eleven rather than twelve delegates. This was probably fortuitous since it provided an odd number, which would make resolution of issues within such committees easier. Altogether, 38 of 55 delegates served on one or more committees. During the course of the proceedings, Charles Pinckney (Rules; Interstate Comity and Bankruptcy), Gouvernuer Morris (Original Apportionment of Congress; Slave Trade and Navigation), and Roger Sherman (Reconsideration of Proposed Representation; Postponed Matters) are on record as having proposed two committees each. Charles Cotesworth Pinckney (Compromise on Representation in Congress), Elbridge Gerry (Committee of Detail), John Rutledge (State Debts and Militia), and George Mason (Sumptuary Legislation) also successfully proposed establishing one committee each, whereas John Carroll was unsuccessful in his proposal for a committee to propose an address to the American people. Convention records do not indicate who proposed the Committee of the Whole, the Committee on Commercial Discrimination, or the Committee of Style. The practice of appointing one member of each state to half of the committees gave smaller states more representation that they would otherwise have had but no more than the practice of giving each state delegation a single vote in the convention itself. Still, Virginia, the largest state with the second largest delegation at the Convention, was the only state that had a member on each committee; Pennsylvania, another large state with the largest delegation present, had a member on each committee other than the Rules Committee. Rufus King of Massachusetts served on a record six committees. South Carolina's John Rutledge and North Carolina's Hugh Williamson served on five committees, Roger Sherman, Nathaniel Gorham (who also chaired the Committee of the Whole), Gouverneur Morris, James Madison, and Abraham Baldwin served on four, and Johnson, Dickinson, and Mason were appointed to four. John 165. Id., at 328. Also see Hueston at 780.

30 176 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XLVIII Langdon, Daniel Carroll, Edmund Randolph, and William Livingston were appointed to three committees. Rutledge and Livingston were the only individuals to chair two committees. The number of committees on which an individual served and which they chaired is one possible measure of influence, but the critical role that Gouverneur Morris played on the Committee of Style and Arrangement (as well as his role in justifying the proposals by the Committee on Postponed Matters) indicates that the chair was not always the most influential committee member. Committees played a vital part in formulating rules for the convention, in compiling and revising resolutions that the convention adopted, and in advancing compromises on measures as diverse as representation in congress, state debts and the governing of the militia, slave importation, commercial discrimination, bankruptcy, and presidential selection. The potential that committees would form cabals antagonistic to the interest of the larger body was largely mitigated by the fact that committees reported back to the convention, which debated, and sometimes modified or rejected, committee proposals, which were never too detailed to escape close inspection. It would thus clearly be an overstatement to substitute "We the Committees" for "We the People," but the former clearly facilitated the work of the latter.