July 23 and 24: ‘The Authority of the People’

July 23 and 24 featured different debates with an overlapping theme: the extent and, perhaps more important, the nature of popular sovereignty.

The question on July 23 was whether the proposed Constitution should be submitted to state legislatures or popular conventions for approval. Some of that dispute revolved around whether the state legislatures, which would lose power if the Constitution was adopted, had a conflict of interest. But Virginia’s George Mason cut to the heart of the matter:

Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and can not be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. 

In his pre-Convention “Vices” memo, Madison had identified the lack of popular ratification as a core defect of the Articles of Confederation. Without it, the authority of Congress was effectively subordinate to the states, who were interested in preserving their own spheres of influence.

For Madison, as for Mason, this was a question of legitimacy: how popular will was to be recorded. Had the debate gone the other way, as some small states initially wanted, the national government would have been a creature of the states, striking a serious blow to its authority and, as Madison noted in “Vices,” its supremacy over the states.

The question of authority arose again when the Convention returned on July 24 to the mode of electing the President. A gambit, only briefly successful, was made to restore election by Congress. Advocates of the separation of powers correctly noted that a President so chosen would owe his or her loyalty to the legislature, not the people. Advocates of election by Congress tried to backfill the problem by proposing a long term–as much as 15 years, and perhaps life–to ensure the President’s independence. James Wilson noted that the Convention was flirting monarchy simply to protect a flawed means of selecting the Executive. He toyed with alternatives, but supported postponing the question because “his opinion remained unshaken that we ought to resort to the people for the election.”

The attempt to leave Congress in charge while making the President independent tied the Convention further in knots the next day.

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