On Tuesday May 29, 1787, Virginia governor Edmund Randolph "opened the main business" of the Philadelphia Convention by introducing a series of resolutions now known to us as the Virginia Plan. Although there is no direct evidence as to who authored the resolutions, James Madison's fingerprints are all over it. As Alison L. LaCroix summarizes in The Ideological Origins of American Federalism
Although the authorship of the plan cannot be determined, the provisions closely tracked Madison's proposals as outlined in his letters to Jefferson, Randolph, and Washington in March and April .
(The letters are identified and linked in my first post on Madison's federal veto.)
Two of the Plan's fifteen resolutions contained provisions relating to a proposed central government veto on state legislation. The sixth resolution asserted that the proposed "National Legislature" should have the power "to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union":
6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereo.
The eighth resolution added more detail, calling for a national "council of Revision" that would review both legislative vetoes of state laws and all acts passed by the "National Legislature":
8. Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular [i.e., State] Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ----- of the members of each branch.
The veto provision of the sixth resolution was initially discussed on Monday June 1, 1787 and passed its first test:
The other clauses giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of Dr. FRANKLIN) were agreed to witht. debate or dissent.
Careful readers will note that the version of the veto contained in the Virginia Plan differed somewhat from that urged by Madison in his pre-Convention letters. In those letters, Madison had argued that the national legislature should have the power to veto state legislation "in all cases whatsoever"; the Plan limited the veto to those state laws "contravening in the opinion of the National Legislature the articles of the Union."
In fact, the arguments concerning the veto on Friday June 8, 1787 - the next time the veto came up for discussion - give us some reason to believe that the caucus of the Virginia delegation that had produced the Virginia Plan had not been entirely comfortable with Madison's broader version and had restricted it somewhat, against Madison's wishes.
At the outset of debate on June 8 Charles Pinckney of South Carolina moved to modify the provision by granting the legislature the power to veto all state laws "which they should judge to be improper":
Mr. PINKNEY moved "that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper." He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it wd. be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the corner stone of an efficient national Govt.; that under the British Govt. the negative of the Crown had been found beneficial, and the States are more one nation now, than the Colonies were then.
According to Prof. LaCroix, "some scholars suspect" that Madison "collud[ed] with Pinckney (his fellow lodger at Mary House's rooms at the corner of Fifth and Market streets)". Not only did Pinckney support the change with the same startling allusion to British practice that Madison had cited in his letters; Madison immediately jumped up and passionately seconded Pinckney's motion. "[A]n indefinited power to negative legislative actions of the States" was, in Madison's view, "absolutely necessary to a perfect system." It was the "mildest expedient" that could "controul [sic] the centrifugal tendency of the States" to "continually fly out of their proper orbits and destroy the order and harmony of the political System":
Mr. MADISON seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy wd. lie in an appeal to coercion. Was such a remedy eligible? was it practicable? Could the national resources, if exerted to the utmost enforce a national decree agst. Massts. abetted perhaps by several of her neighbours? It wd. not be possible. A small proportion of the Community, in a compact situation, acting on the defensive, and at one of its extremities might at any time bid defiance to the National authority. Any Govt. for the U. States formed on the supposed practicability of using force agst. the unconstitutional proceedings of the States, wd. prove as visionary & fallacious as the Govt. of Congs. The negative wd. render the use of force unnecessary. The States cd. of themselves then pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination wd. only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system. This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.
In the next post I will continue to chart the course of the federal veto through the Constitutional Convention.