The Convention spent a considerable amount of time going around in circles regarding how to elect the President. For the most part, there was agreement that they ought not be chosen by the Legislature. So the question then became who was to choose presidents if not the legislature. Since this would be a national office, could the people as a nation choose them directly? It is often said that the Convention settled on the Electoral College partially because they wanted a filtering mechanism such that presidents would be chosen by those with more judgment and experience than the mass of … Continue reading July 25-26: Who Should Elect the President?
On July 25, as the Convention moved gradually toward an Electoral College as the mode of choosing Presidents, Madison took a stand against appointment by Congress: Election by the legislature was, he said, liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with … Continue reading July 25: Who Wrote the Virginia Plan?
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 … Continue reading July 23 and 24: ‘The Authority of the People’
July 21 witnessed an abortive attempt to revive the Council of Revision, which would have empowered a panel of Supreme Court justices and the President to veto Congressional bills. Curiously, James Wilson and James Madison—the Convention’s and, later, The Federalist’s foremost advocates of the separation of powers—were also champions of the Council of Revision. Both said on July 21 that it would involve judges in vetoing laws on both Constitutional and policy grounds. Wilson argued that judicial review after bills became law was insufficient: Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may … Continue reading July 21: The Council of Revision
Having discussed the great strength of the President during the previous day, the Convention now turned to the crucial control on that strength: impeachment. The form of the Constitution not just here but throughout the structure always ties power to responsibility. The President can be vigorous because the President is subject both to reelection and to impeachment. All-too-often when our political culture discusses the Constitution too much emphasis is placed on the checks. In placing such emphasis on these checks, we assume the essential purpose of the Constitution was to limit governmental power. But the Presidency is the example par-excellence … Continue reading July 20: Impeachment
The central issue on July 18 was the mode of appointing justices to the Supreme Court. The first motion put to the Convention would have assigned that authority to the Senate alone. Nathaniel Ghorum of Massachusetts thought the accountability of a legislative body would be too diffuse: No one member would feel responsible for a given appointment. He moved that the President appoint judges with the advice and consent of the Senate. The ensuing debate focused on how to obtain what Luther Martin called “a fit choice.” Some thought appointment by the Senate would avoid the concentrated power involved in … Continue reading July 18 in the Constitutional Convention: Judicial Confirmations
In addition to Susan’s excellent analysis of the events of July 16 and 17—the hinge of the Convention, she accurately writes, defined as the days were by the Great Compromise—another issue repays careful attention. That issue, which was debated on the 17th, was Madison’s lead balloon, or, perhaps better put, his white whale: the national veto on state laws. The motion on the floor was to empower the national government to strike down state laws that contravened the Constitution. Even this much was not enough for Madison, who had written to Washington before the Convention—with emphasis in the original—that the … Continue reading More on July 17: Madison’s Lead Balloon
Without question, July 16 and 17 were two of the most important days of the Constitutional Convention. That’s because across the span of those two days, the delegates reached what gets called “The Great Compromise.” (Sometimes you’ll also hear this talked about as “The Connecticut Compromise” or “Sherman’s Compromise.”) To that point, there had been difficult debate between large and small states over their representation in the proposed Senate. Larger states, not surprisingly, wanted representation in the Senate to be proportional, with states that contributed more to national defense and finance having more representatives. Smaller states, again not surprisingly, wanted … Continue reading July 16-17: The Great Compromise, and Beyond
The July 14th debate illustrates well the disagreement about whether this federal government would be a union of the States or a Union of the states. It’s hard for us now to recover fully this dispute because, after the Civil War, it became clear to everyone except the state of Texas that the national government was supreme in sovereignty to the state governments. The state governments persisted and have never been treated simply as functionaries of the national government, but there was no longer a question of ultimate supremacy. By contrast, prior to the Civil War, almost all documents say … Continue reading July 14: How Federal Would the Federal Government be?
July 13 features, as have recent days, a naked display of the real basis of the three-fifths compromise: Southern states wanted enslaved people counted toward representation for the sole purpose of perpetuating their enslavement. Pierce Butler of South Carolina did not attempt to hide it: “The security the Southn. States want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do.” Butler was responding to the delegate from whom we have heard so much: Gouverneur Morris. Morris had struck at the fatal flaw of the attempt to … Continue reading July 13: Morris Anticipates, and Demolishes, Calhoun