Tag: JFC2017

September 12, 1787 (Click to read Madison’s notes)

Summary

Yesterday’s session (9/11) adjourned without action because the Committee of Style did not have a completed product. On the 12th the delegates voted against a Bill of Rights and amended the override margin for a presidential veto.

Influences on the Delegates

One of the items considered during this session involved the number of delegates needed to override a presidential veto. In the end, the delegates required 2/3 instead of 3/4. The experience of the states was important for two delegates.

Colonel MASON had always considered this as one of the most exceptionable parts of the system. As to the numerical argument of Mr. GOUVERNEUR MORRIS, little arithmetic was necessary to understand that three fourths was more than two thirds, whatever the numbers of the Legislature might be. The example of New York depended on the real merits of the laws. The gentlemen citing it had no doubt given their own opinions. But perhaps there were others of opposite opinions, who could equally paint the abuses on the other side. His leading view was, to guard against too great an impediment to the repeal of laws.
Mr. GOUVERNEUR MORRIS dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. On the other side, there could be little danger. If one man in office will not consent where he ought, every fourth year another can be substituted. This term was not too long for fair experiments. Many good laws are not tried long enough to prove their merit. This is often the case with new laws opposed to old habits. The inspection laws of Virginia and Maryland, to which all are now so much attached, were unpopular at first.
Mr. PINCKNEY was warmly in opposition to three fourths, as putting a dangerous power in the hands of a few Senators, headed by the President.
Mr. MADISON. When three fourths was agreed to, the President was to be elected by the Legislature, and for seven years. He is now to be elected by the people, and for four years. The object of the revisionary power is two-fold, — first, to defend the Executive rights; secondly, to prevent popular or factious injustice. It was an important principle in this and in the State Constitutions, to check legislative injustice and encroachments. The experience of the States had demonstrated that their checks are insufficient. We must compare the danger from the weakness of two thirds, with the danger from the strength of three fourths. He thought, on the whole, the former was the greater. As to the difficulty of repeals, it was probable, that in doubtful cases, the policy would soon take place, of limiting the duration of laws, so as to require renewal instead of repeal.

The suggestion for a bill of rights committee failed on a tie vote:

Colonel MASON perceived the difficulty mentioned by Mr. GORHAM. The jury cases cannot be specified. A general principle laid down, on this and some other points, would be sufficient. He wished the plan had been prefaced with a Bill of Rights, and, would second a motion, if made for the purpose. It would give great quiet to the people; and with the aid of the State Declarations, a bill might be prepared in a few hours.
Mr. GERRY concurred in the idea and moved for a Committee to prepare a Bill of Rights.
Colonel MASON seconded the motion.
Mr. SHERMAN was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper, which cannot be discriminated. The Legislature may be safely trusted.
Colonel MASON. The laws of the United States are to be paramount to State Bills of Rights.
On the question for a Committee to prepare a Bill of Rights, —
New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, aye, — 5; Maryland, Virginia, North Carolina, South Carolina, Georgia, no, — 5; Massachusetts, absent.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here.  In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
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September 10, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates took up the last articles of the Constitution. Specifically, they approved the method of amending the Constitution and the process for ratifying it.

Influences on the Delegates

There were no obvious influences mentioned in this session. As consideration of changes wound down, at least one delegate signaled his disapproval of the system.

Mr. RANDOLPH declared, if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. He had from the beginning, he said, been convinced that radical changes in the system of the Union were necessary. Under this conviction he had brought forward a set of republican propositions, as the basis and outline of a reform. These republican propositions had, however, much to his regret, been widely, and, in his opinion, irreconcilably departed from. In this state of things, it was his idea, and he accordingly meant to propose, that the State conventions should be at liberty to offer amendments to the plan; and that these should be submitted to a second General Convention, with full power to settle the Constitution finally. He did not expect to succeed in this proposition, but the discharge of his duty in making the attempt would give quiet to his own mind.

Later in the session, Randolph made an impassioned plea for the Constitution to go through the current Congress.

Mr. RANDOLPH took this opportunity to state his objections to the system. They turned on the Senate’s being made the court of impeachment for trying the Executive, — on the necessity of three fourths instead of two thirds of each House to overrule the negative of the President, — on the smallness of the number of the Representative branch, — on the want of limitation to a standing army, — on the general clause concerning necessary and proper laws, — on the want of some particular restraint on navigation acts, — on the power to lay duties on exports, — on the authority of the General Legislature to interpose on the application of the Executives of the States, — on the want of a more definite boundary between the General and State Legislatures, — and between the General and State Judiciaries, — on the unqualified power of the President to pardon treasons, — on the want of some limit to the power of the Legislature in regulating their own compensations. With these difficulties in his mind, what course, he asked, was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in tyranny? He was unwilling, he said, to impede the wishes and judgment of the Convention, but he must keep himself free, in case he should be honored with a seat in the Convention of his State, to act according to the dictates of his judgment. The only mode in which his embarrassment could be removed was that of submitting the plan to Congress, to go from them to the State Legislatures, and from these to State Conventions, having power to adopt, reject, or amend; the process to close with another General Convention, with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government. He accordingly proposed a resolution to this effect.
Doctor FRANKLIN seconded the motion

Virginia’s George Mason moved to tabled the motion.
Although he later supported ratification, Randolph refused to sign the Constitution due to the objections he raised above. The refusal of delegates to sign off on the work they had labored over is an indication that the delegates were not unified. The real picture is quite different from what Eric Metaxas claims in his book, If You Can Keep It. Speaking about the end of the Convention, Metaxas wrote:

As we know, in the end all impasses were broken, compromises on all issues struck, and solutions found. There was what all felt to be a truly remarkable— almost odd— willingness for each side to set aside its concerns for the good of the whole. The spirit of selflessness and compromise that came over this body of opinionated, brilliant, and principled men was in the end sufficient for them to ratify the great document called the Constitution. Metaxas, Eric (2016-06-14). If You Can Keep It: The Forgotten Promise of American Liberty (p. 206). Penguin Publishing Group. Kindle Edition.

While some delegates later marveled that the Constitution came together, the fact is that there were disagreements right up to the end. In hindsight, it does seem miraculous that the system held up and has worked as well as it has. However, at the time, there were very real disagreements which led some delegates not to sign the document.

Can’t Touch the Slave Trade

The sell out to the Southern states was nearly completed by the insistence of South Carolina’s Rutlidge that no amendment to the Constitution could touch the slave trade.

Mr. RUTLIDGE said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property, and prejudiced against it. In order to obviate this objection, these words were added to the proposition;¹ “provided that no amendments, which may be made prior to the year 1808 shall in any manner affect the fourth and fifth sections of the seventh article.” The postponement being agreed to, —
On the question on the proposition of Mr. MADISON and Mr. HAMILTON, as amended, —
Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Delaware, no, — 1; New Hampshire, divided.
 

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here.  In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
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September 8, 1787 (Click to read Madison’s notes)

Summary

The delegates fine-tuned the executive branch and debated language regarding impeachment of the president. The role of the Senate in money bills was also debate again.

Influences on the Delegates

Mason wanted a term added to the provisions of impeachment which would extend the grounds.

Colonel MASON. Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offences. Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason, as above defined. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments. He moved to add, after “bribery,” “or maladministration.”

Oh that he would have succeeded!
In a phrase that is now sadly hilarious, Morris said:

Mr. GOUVERNEUR MORRIS. It will not be put in force, and can do no harm. An election of every four years, will prevent maladministration. (my emphasis)

No, actually, a four year term does not prevent maladministration.
The phrase “high crimes and misdemeanors” seems to be a reference to the action of the House of Commons against Warren Hastings. The charges brought against the Governor General of Bengal (British India) in 1786 involved many crimes other than treason. Mason wanted the executive held accountable for criminal mismanagement which did not of necessity involve treason.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here.  In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
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September 7, 1787 (Click to read Madison’s notes)

Summary

The subject of the day was the executive branch, the president and vice-president.

Influences on the Delegates

Discussing the role of the Senate in ratifying peace treaties, Pierce Butler from South Carolina wanted to president-proof the process. Madison’s motion was to require the Senate to ratify peace treaties without concurrence of the president.

Mr. BUTLER was strenuous for the motion, as a necessary security against ambitious and corrupt Presidents. He mentioned the late perfidious policy of the Stadtholder in Holland; and the artifices of the Duke of Marlborough to prolong the war of which he had the management.

George Mason hoped the delegates would reconsider making a president’s council a part of the Constitution.

Colonel MASON² said, that, in rejecting a council to the President, we were about to try an experiment on which the most despotic government had never ventured. The Grand Seignior himself had his Divan. He moved to postpone the consideration of the clause in order to take up the following:
“That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State for the President of the United States; to consist of six members, two of which from the Eastern, two from the Middle, and two from the Southern States; with a rotation and duration of office similar to those of the Senate; such council to be appointed by the legislature or by the Senate.”
Doctor FRANKLIN seconded the motion. We seemed, he said, too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience showed that caprice, the intrigues of favorites and mistresses, were nevertheless the means most prevalent in monarchies. Among instances of abuse in such modes of appointment, he mentioned the many bad Governors appointed in Great Britain for the colonies. He thought a Council would not only be a check on a bad President, but be a relief to a good one.
Mr. GOUVERNEUR MORRIS. The question of a Council was considered in the committee, where it was judged that the President, by persuading his Council to concur in his wrong measures, would acquire their protection for them.
Mr. WILSON approved of a Council, in preference to making the Senate a party to appointments.
Mr. DICKINSON was for a Council. It would be a singular thing, if the measures of the Executive were not to undergo some previous discussion before the President.
Mr. MADISON was in favor of the instruction to the committee proposed by Colonel MASON.
The motion of Colonel MASON was negatived, —
Maryland, South Carolina, Georgia, aye, — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, no, — 8.

Here we have George Mason referring to the example of Turkey. Even the sultan of Turkey had his Divan, or advisors. However, the president didn’t get the divan on this day in history.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here.  In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
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September 6, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates continued their discussion of how to elect the president and vice-president.

Influences on the Delegates

Today, the delegate worried about an aristocracy was Pennsylvania’s James Wilson.

Mr. WILSON said, that he had weighed carefully the Report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have, in fact, the appointment of the President, and, through his dependence on them, the virtual appointment to offices; among others, the officers of the Judiciary department. They are to make treaties; and they are to try all impeachments. In allowing them thus to make the Executive and Judiciary appointments, to be the court of impeachments, and to make treaties which are to be laws of the land, the Legislative, Executive, and Judiciary powers are all blended in one branch of the Government. The power of making treaties involves the case of subsidies, and here, as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people, as he ought to be; but the minion of the Senate. He cannot even appoint a tide-waiter without the Senate. He had always thought the Senate too numerous a body for making appointments to office. The Senate will, moreover, in all probability, be in constant session. They will have high salaries. And with all these powers, and the President in their interest, they will depress the other branch of the Legislature, and aggrandize themselves in proportion. Add to all this, that the Senate, sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they make a part.

By this late date in the convention, discontent still sounded from several of the delegates. Alexander Hamilton indicated his willingness to approve the plan even though he didn’t like it.

Mr. HAMILTON said, that he had been restrained from entering into the discussions, by his dislike of the scheme of government in general; but as he meant to support the plan to be recommended, as better than nothing, he wished in this place to offer a few remarks. He liked the new modification, on the whole, better than that in the printed Report. In this, the President was a monster, elected for seven years, and ineligible afterwards; having great powers in appointments to office; and continually tempted, by this constitutional disqualification, to abuse them in order to subvert the Government. Although he should be made reëligible, still, if appointed by the Legislature, he would be tempted to make use of corrupt influence to be continued in office. It seemed peculiarly desirable, therefore, that some other mode of election should be devised. Considering the different views of different States, and the different districts, Northern, Middle, and Southern, he concurred with those who thought that the votes would not be concentered, and that the appointment would consequently, in the present mode, devolve on the Senate. The nomination to offices will give great weight to the President. Here, then, is a mutual connexion and influence, that will perpetuate the President, and aggrandize both him and the Senate. What is to be the remedy? He saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. What was the objection to this? Merely that too small a number might appoint. But as the plan stands, the Senate may take the candidate having the smallest number of votes, and make him President.

The discussion resumed the next day.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here.  In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
To follow on social media, click the following links:
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