Charles Sumner, a delegate from Massachusetts and chairman of the Executive Committee, presented a joint report from the Legislative and Executives Committees on March 29th, 1861, rapidly becoming the crux of the entire endeavor to rewrite America’s constitution. Most Americans agreed that the executive branch, and in particular, how the president was chosen, was a broken system that had in no small part contributed to the outbreak of hostilities between the slave and free states. What they could not agree on was how to fix this problem, which made the task before the convention feel quite daunting. Most delegates at the convention who were not on those two committees had expected a suggestion about changes in term length, the electoral college mechanism, and maybe some changes in specifically named presidential powers. What they did not expect was a joint proposal from two committees recommending a rather radical reimagining of how the executive and legislative branches functioned. In hindsight, this should not have been as shocking as it was, considering the 157 delegates from the Confederation, which had operated under a completely new system for nearly four years. These Confederal delegates, especially Sumner and Stevens, were eager to bring some of these new lessons in governance to the rest of the country.
The proposal in Sumner’s joint report imagined a stronger relationship between the executive and legislative branches and a less powerful presidency. The key points included:
The House of Representatives chooses from among its membership a “Secretary General” who would head the president’s cabinet.
The House was to be given the “advise and consent” role for the cabinet and given the extra power to “withdraw consent,” giving the House of Representatives the power to have a vote of no confidence in the cabinet and the new Secretary General.
Created specific cabinet members: Secretary of the Exterior (formerly the Secretary of State, with the old domestic duties handed off), Secretary of War, Secretary of the Treasury, Secretary of the Interior, and Attorney General.
It stipulated that executive decisions had to be made by a majority vote of the cabinet and that the president would then carry out their wishes - with the ability to advise the cabinet. The president was, in effect, to “preside” and execute, not to govern.
The president would be popularly elected - in effect, abolishing the Electoral College
Voters would use an “instant run-off” vote system to continue to allow more than two political parties and avoid the issue that occurred in 1856.
Presidential succession would build upon the existing law from 1792, along with proposals that had been floated at various times over the years: Vice President, then Speaker of the House / Secretay General, then President pro-temp of the Senate, then adding the Secretary of the Exterior, Secretary of War, Secretary of the Treasury, Secretary of the Interior, and the Attorney General.
There was an almost immediate uproar in the chamber after Sumner finished his presentation, taking Abraham Lincoln, as convention president, several minutes to calm down. The southern delegates were the most vocal in their opposition, and many Free State delegates were just as unpleased, decrying the “New England radicalism” that Sumner and Stevens were trying to push on the country. As written, it was too radical to gain even a bare majority of delegates (243) in support, let alone the two-thirds required by the convention rules (323 votes). The convention rejected the initial proposal and demanded the two committees return to the drawing board. The following week, April 5th, Sumner presented a new report that kept nearly everything in the initial report but retained the original electoral college and removed the specifically defined cabinet. This was also rejected, and a counter-committee was formed to develop a “reasonable” plan that the existing committees could not seem to manage. On April 12th, this counter-plan was presented and essentially left the original system in place, only adopting an instant run-off system for electing the president and lowering the bar slightly for impeachment. Having expected such a paltry proposal, the New England delegates had prepared a response. Thaddeus Stevens rose and made a brief remark to the assembly: “We did not fight a war to bring about lasting and reformative change to this republic only to have such needs be rejected in committee.” He then walked out of the chamber, followed by all of the Confederal delegates as well as those from Gigadohi, Kanasaw, Louisiana, and Mississippi, breaking the quorum and shutting down the whole process. Lincoln would spend the next several days in meetings to try and get the opposing sides to hammer out a compromise - making clear that he agreed with the Confederals that more substantive change was needed and that the counter-proposal was a non-starter.
On April 26th, the so-called “Executive Compromise” was presented to the convention for formal consideration:
The House would place one of its members as the head of the president’s cabinet, referred to as the Secretary-General.
The House was to be given the “advise and consent” role for the cabinet and given the extra power to “withdraw consent,” giving the House of Representatives the power to have a vote of no confidence in the cabinet and the new Secretary General.
Created specific members of the cabinet: Secretary of the Exterior (formerly the Secretary of State, with the old domestic duties handed off), Secretary of War, Secretary of the Treasury, Secretary of the Interior, and Attorney General, with provisions that the cabinet and president could, with the consent of the House, establish new departments.
Executive decisions remained in the hands of the president, but the cabinet could veto such executive action with a two-thirds majority vote.
The Electoral College would be retained, but states were required to choose their electors by popular vote, and that a specific congressional district would select each elector.
Presidential succession would build upon the existing law from 1792, along with proposals that had been floated at various times over the years: Vice President, then Speaker of the House / Secretay General, then President pro-temp of the Senate, then the Secretary of the Exterior, Secretary of War, Secretary of the Treasury, Secretary of the Interior, and the Attorney General.
This program was still too radical for most Southern delegates, except Cassius Clay, but in the end, it received 389 votes in favor, 80 votes against, with 15 abstentions. The biggest drama of the convention was now over.
While the delegates had been focused on how the legislative and executive branches would be changed, the States Committee had been quietly at work creating their draft report, which technically had been ready for presentation on April 5th. They decided to wait until after all of the tension over the Legislative-Executive Report died down. On May 3rd, delegate Degataga Watie of Gigadohi rose to present his committee’s proposed changes to Article V (which was set to become Article VI in the new document) to the convention: formalize the procedure for territories to join the union, give territories more direct say in governance before statehood, and provide for the creation of special status for Native-majority states when it came to communal property ownership. Most of the proposal had overwhelming support, and the debate that day would center entirely around the proposed “section 3” regarding the special status of Native states:
Land and natural resources within the State may be held as communal property by the citizens of the State, under laws enacted by the State’s legislature.
Communal property may be leased to private individuals or entities for use or development, provided such leases are subject to the consent of the State legislature or an assembly of the State’s citizens.
Non-Native citizens of the United States shall retain their full rights of citizenship and shall not be denied residence or participation in civic life within such States, but must abide by local legislation.
The laws and customs of Native nations residing within the State shall be recognized and respected, provided they are consistent with this Constitution and the laws of the United States.
Congress shall have the authority to enact laws ensuring the fair treatment and protection of Native communities within such States, as well as safeguarding the constitutional rights of all United States citizens residing therein.
While the debate would not be as contentious as it had been for how to restructure the legislative and executive branches, there were many detractors to this proposal, alarmed at the idea of creating “specialty states” that would, in effect, bar whites from moving to parts of the country. When Lincoln finally called the question late that afternoon, the proposal only passed with 377 votes, with 107 delegates opposed. Opposition was spread relatively evenly across regions, too, with 27 of the ‘no’ votes coming from supposedly radical New England.
After this vote, the Procedural Committee was charged with taking all the approved changes that the convention had approved and drafting a cohesive document for final approval to be sent to the states. They were also given the leeway to change wording to help modernize the document and clarify areas where delegates might feel the 1787 constitution was murky on, but had yet to be addressed explicitly by any of the committees thus far. Before such a document could be assembled, the committee voted to present one last issue to the convention: term limits for Congress and the judiciary. Several delegates felt this was needed and should be discussed, but none of the previous committees had addressed this issue. On May 7th, the committee formally opened the issue before the convention. They recommended a seven-term limit for House members and three terms for senators. Additionally, they proposed a ten-year review process on all appointed justices, requiring reappointment after a decade. The debate lasted two days before the final votes were held - separate ones for each proposal. Limits on the House and Senate terms were approved, each with over 400 votes. The judicial limits, however, did not pass, with 299 in favor to 185 against, falling short of the two-thirds majority vote.
With that, the Procedural Committee got to work finalizing the new constitutional document. On May 15th, 1861, that work was presented to the convention. The new text contained eight articles, thanks to the addition of the “Rights” Article at the start of the document, and it also boasted a revised preamble, one that the committee members felt better suited to the new circumstances of the republic:
“We, the People of the United States, in the firm pursuit of liberty, justice, and equality for all men, do ordain and establish this Constitution to secure the Union, provide for the equal protection of the laws, and ensure the blessings of freedom and self-government for ourselves and our posterity.”
Other minor linguistic adjustments were made, showing the shift in English over the nearly eighty years since the first constitution was adopted. The committee members reviewed each such change with the delegates, and after nearly eight hours of discussion, Abraham Lincoln called for the vote. 468 members voted in favor of the new document, 16 against. Of those, ten votes came from Virginia, Maryland, Delaware, North Carolina, and South Carolina and were staged in protest to represent two votes from each occupied southern state that was not in attendance. The other six came from Massachusetts, where there was stronger sentiment for keeping the Confederation independent. The document’s Article VIII, which handled ratification, called for 19 states to ratify by convention to officially establish the new constitutional order. This was three-fourths of the states that had participated in the convention (with Jefferson, Arkansas, Tennessee, Alabama, Georgia, and Florida still under military occupation and having not attempted to abolish slavery at the state level).
With this historic vote on May 15th, the convention agreed to dissolve, and now it would be up to the states. Pennsylvania and Ohio both ratified the new constitution on May 31st. In June, New York, New Jersey, Illinois, and Iowa all ratified. Appalachia, Vermont, Missouri, Minnesota, and Maine all approved in July. Platte, Connecticut, and Mississippi did the same in August. Indiana, Virginia, Maryland, and New Hampshire followed suit in September. At this point, the new constitution needed one more participating state to give assent, and of the participating states from the convention, Rhode Island, Louisiana, South Carolina, North Carolina, Delaware, Kentucky, and Massachusetts had yet to do so.
Before any of those states pushed the new governing document over the finish line, the state of Jefferson held a convention that voted on September 1st to ratify the Constitution of 1861. This shocked many across the country since that state’s legislature had refused to assemble to vote on anti-slavery legislation for Jeffersonians to be represented at the convention in the first place. Furthermore, it begged the question of whether or not the other occupied states of the South could do the same, and if they did, would that end the occupation in their state. This was the very reason North and South Carolina had yet to ratify the document - they wanted guarantees that the military occupation would end if they did. Neither Acting President Brandt nor Consul Portman had been willing to answer that question. Now, Jefferson had forced the issue. The two leaders messaged back and forth over the first few days of September. On September 6th, they announced that, yes, any state that ratified the new constitution once it had been approved by 19 of the states that had participated in the convention would be “welcomed into the family of states, and martial law in that state would end.” On September 12th, Virginia became the 19th state to adopt the Constitution of 1861, bringing the document into force. By the month's end, the Carolinas, Louisiana, and Massachusetts had ratified. By the end of the year, every state except Alabama, Georgia, and Florida ratified. Those three would remain a complication for several more years.