Powers of the National Legislature
[31 May 1787]
The clause of the sixth resolution of the Virginia Plan giving the national legislature power “to legislate in all cases to which the separate States are incompetent” was under debate.
Mr. Madison said that he had brought with him into the Convention a strong bias in favor of an enemeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be he could not yet tell. But he should shrink from nothing which should be found essential to such a form of Govt. as would provide for the safety, liberty and happiness of the Community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.1
1. Pierce’s version:
“Mr. Maddison said he had brought with him a strong prepossession for the defining of the limits and powers of the federal Legislature, but he brought with him some doubts about the practicability of doing it:—at present he was convinced it could not be done” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 60).
According to Pierce, during this debate JM had also commented prior to this speech: “it was necessary to adopt some general principles on which we should act,—that we were wandering from one thing to another without seeming to be settled in any one principle” (ibid., I, 60).
[31 May 1787]
The coercive-power clause of the sixth resolution, authorizing the use of force against a state “failing to fulfill its duty” to the Union, was under debate.
Mr. Madison, observed that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually. A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed.1
1. After “postponed,” JM deleted “till the contrary should be found on trial to be the case,” a change he made before Eppes copied the Debates. Many years later JM explained that the coercive-power clause was “suggested by the inefficiency of the Confederate system, from the want of such a sanction; none such being expressed in its Articles” (to John Tyler, [March?] 1833, Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , III, 528). JM himself in 1781 had drafted a proposed amendment to the Articles of Confederation authorizing the use of force to compel the states “to fulfill their federal engagements” (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , III, 17–19). As long as the U.S. remained a confederation of sovereign states, JM believed that the federal government needed this coercive power, although he admitted “the difficulty & awkwardness of operating by force on the collective will of a State” (JM to Washington, 16 Apr. 1787, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 385). Such a provision would be unnecessary, however, if the convention devised a national government operating directly over individuals. See JM to Jefferson, 24 Oct. 1787.