Method of Ratifying the Constitution
[5 June 1787]
The Virginia Plan resolution (fifteen) providing for popularly elected ratifying conventions was under debate.
Mr. Madison thought this provision essential. The articles of Confedn. themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Congs. especially where the former are of posterior date, and the decision is to be made by State Tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.1
1. Yates’s version:
“Mr. Madison endeavored to enforce the necessity of this resolve—because the new national constitution ought to have the highest source of authority, at least paramount to the powers of the respective constitutions of the states—points out the mischiefs that have arisen in the old confederation, which depends upon no higher authority than the confirmation of an ordinary act of a legislature—Instances the law operation of treaties, when contravened by any antecedent acts of a particular state” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 126–27).
“Mr. Maddison enforced the Necessity of this Resolve for that the new Constitution ought to have the highest Source of Authority—at least paramount to the several Constitutions—points out the Mischiefs arising from the present Confederation depending on ordinary State Authorities—Instance the Effect of Treaties when contrasted with antecedent Acts of Legislature” (Strayer, Delegate from N.Y. description begins Joseph R. Strayer, ed., The Delegate from New York or Proceedings of the Federal Convention … from the Notes of John Lansing, Jr. (Princeton, 1939). description ends , p. 34).
Lansing was ill on this day and took his account of the proceedings from Yates (ibid., pp. 32–33).