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Robert J. Spitzer

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The Constitution We Nearly Had

Posted: 09/15/11 03:10 PM ET

Here's an assignment for September 17, Constitution Day: imagine a very different Constitution -- one where, for example, Congress could kill any state law, where a twenty-six member Senate controlled treaty-making with other nations, and where the president's veto was exercised jointly with the Supreme Court. These proposals and more failed to win approval at the Constitutional Convention of 1787 by a single vote.

Perhaps because the document has endured relatively unchanged in over two hundred years, many assume -- Tea Partiers and Originalists among them -- that the Constitution represented a nearly inevitable culmination of consensus. But our governing document was no Ten Commandments, Philadelphia no Mount Sinai, and the presiding officer, George Washington, no Moses. Few of the fifty-five delegates representing twelve states (Rhode Island refused to send representatives) envisioned a document as different from the old Articles of Confederation as that which emerged on September 17.

Many of the provisions of the Constitution that we accept as bedrock tenets of government were narrowly approved, and other proposals -- some of which would have fundamentally realigned the American governing order as we know it today -- were defeated by a single vote (each state delegation cast a single vote, regardless of delegate or state size). For example, but for the difference of one vote, the country would have consisted of no more than twenty-six states. Elbridge Gerry of Massachusetts proposed that the number of new states admitted to the union not be allowed to exceed the number of original states, so that the new western states would not "drain our wealth into the Western Country." Connecticut's Roger Sherman argued against Gerry's motion by blithely assuring that "there was no probability" that this many states would ever be admitted. Also defeated by a single vote was Sherman's motion to assign each state only one senator, arguing that the smaller states would accept no other plan. "Every thing... depended on this," he insisted.

With the switch of a single vote, the presidential veto would have been exercised jointly by the chief executive and members of the Supreme Court in what was called a "council of revision." Such a scheme was used in New York by the governor and state judges until the early nineteenth century, and was one of the most cherished constitutional proposals of founder-in-chief James Madison, who argued that "the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable." Madison abandoned the idea with the greatest reluctance.

The Convention defeated by a single vote a proposal -- surely a startling prospect to contemporary political sensibilities -- to give Congress an absolute veto over state laws. Charles Pinckney of South Carolina argued that this congressional veto was necessary to keep the states "in due subordination to the nation." Elbridge Gerry disagreed, saying that unreasonable state actions would meet with popular disapproval, but if public opprobrium did not work, "force might be resorted to." (Take that, Rick Perry.)

By one vote, the Convention defeated a proposal to have the states pay the salaries of their representatives to Congress, rather than paying them out of the federal treasury. New York's Alexander Hamilton argued against, saying that the state legislatures "ought not to be the pay masters" of federal representatives.

Treaty-making powers might have been very different. But for a single vote, the Constitution would have given "a majority of all the Members of the Senate [the power] to make a treaty." Not only would ratification have required a simple majority instead of two-thirds, but the president's power to "make treaties" would have belonged to the Senate, propelling it ahead of the president in international diplomacy.

Other changes were narrowly averted, from giving the president a single, seven-year term, to granting Congress the power to create a nonsectarian national university. The point about these changes, of course, is that they didn't happen. But what matters most is that the struggle to re-create our system of government was neither pre-ordained nor above politics. Disagreement and uncertainty, not confident certitude, were the prevailing sentiments. That our system continues to function at all is a testament to the Founders' willingness to compromise, experiment, and leave to future generations many of the most important questions of governance. As Thomas Jefferson wrote in 1810, "Our children will be as wise as we are and will establish in the fulness of time those things not yet ripe for establishment."