The 1787 Constitutional Convention – Without the Help of Moses, the Delegates Debated Judges

Journal Federal Cons LogoJune 5, 1787
In a busy session, the delegates debated multiple facets of the judiciary. They agree on a Supreme Court and inferior courts but declined to have the legislature approve them. The delegates debated various aspects of forming an interim government and agreed on a policy of admitting new states into the union.
The delegates cited experience, Scotland, and Athens as foundations for their positions.

Mr. WILSON opposed the appointment of Judges by the National Legislature. Experience showed the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was, that officers might be appointed by a single, responsible person.
Doctor FRANKLIN observed, that two modes of choosing the Judges had been mentioned, to wit, by the Legislature, and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then, in a brief and entertaining manner, related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, in order to get rid of him, and share his practice among themselves. It was here, he said, the interest of the electors to make the best choice, which should always be made the case if possible.

South Carolina delegate Pierce Butler appealed to the Athenian lawmaker Solon to support Butler’s view that the people wouldn’t favor a federal judiciary.

Mr. BUTLER. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon, who gave the Athenians not the best government he could devise, but the best they would receive.

If the delegates wanted to go to Moses and Exodus 18, today would have been a good day for it since they debated the creation of a judicial system throughout the nation. However, there was no mention of Moses or his scheme for addressing the disputes of the Jewish people.
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