The 1787 Constitutional Convention – Back to the Judiciary

photo-1467912407355-245f30185020_optJuly 21, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates agreed to pay electors from the treasury and to give the executive veto power. They also reconsidered aspects of the judiciary and voted to allow the Senate to select judges. For all of his reverence for republican principles, even Madison wondered if the executive branch might team up with the judiciary to revise laws passed by the legislature. The discussion is fascinating and should be consulted by all who think the Supreme Court errs by legislating from the bench. In the end, this motion by Wilson did not pass.

Influences on the Delegates

Gorham from Massachusetts appealed to England as an illustration why judges and the executive should be separate.

Mr. GORHAM did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on the Judges for their opinions.

Morris thought the British judges had a significant role in legislation but that this would not translate well here.

The truth was, that the Judges in England had a great share in the legislation. They are consulted in difficult and doubtful cases. They may be, and some of them are, members of the Legislature. They are, or may be, members of the Privy Council; and can there advise the Executive, as they will do with us if the motion succeeds. The influence the English Judges may have, in the latter capacity, in strengthening the Executive check, cannot be ascertained, as the King, by his influence, in a manner dictates the laws. There is one difference in the two cases, however, which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives, and such power for means of defending them, that he will never yield any part of them. The interest of our Executive is so inconsiderable and so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting encroachments. He was extremely apprehensive that the auxiliary firmness and weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations, than from any other source. It had been said that the Legislature ought to be relied on, as the proper guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition, no check will be wanted. On the former, a strong check will be necessary. And this is the proper supposition. Emissions of paper-money, largesses to the people, a remission of debts, and similar measures, will at some times be popular, and will be pushed for that reason. At other times, such measures will coincide with the interests of the Legislature themselves, and that will be a reason not less cogent for pushing them. It may be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil; yet it is found to be unable to prevent it altogether.

Madison again appealed to experience and the British Constitution to argue against Morris’ understanding.

Mr. MADISON could not discover in the proposed association of the Judges with the Executive, in the revisionary check on the Legislature, any violation of the maxim which requires the great departments of power to be kept separate and distinct. On the contrary, he thought it an auxiliary precaution, in favor of the maxim. If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper. Instead, therefore, of contenting ourselves with laying down the theory in the Constitution, that each department ought to be separate and distinct, it was proposed to add a defensive power to each, which should maintain the theory in practice. In so doing, we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the Legislature, and in the Executive Councils, and submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of their Constitution which had been universally regarded as calculated for the preservation of the whole. The objection against a union of the Judiciary and Executive branches, in the revision of the laws, had either no foundation, or was not carried far enough. If such a union was an improper mixture of powers, or such a Judiciary check on the laws was inconsistent with the theory of a free constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.

 

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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The 1787 Constitutional Convention – The President May Be Impeached

a570af34_optJuly 20, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates continued to discuss details of the executive role. They agreed to allocate 1 to 3 electors per state based on the population of the state, agreed that the executive should be paid from the treasury, and made impeachment an option.

Influences on the Delegates

Ben Franklin refers to history but was not specific when he argued in favor of impeachment for a bad behaving executive. If he was alive today and made this statement, he would have trended on Twitter — “Franklin calls for assassination!”

Doctor FRANKLIN was for retaining the clause as favorable to the Executive. History furnishes one example only of a First Magistrate being formally brought to public justice. Every body cried out against this as unconstitutional. What was the practice before this, in cases where the Chief Magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the Executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.

Franklin later referred to Holland as a negative example (in other words, let’s don’t do what they’ve done).

Doctor FRANKLIN mentioned the case of the Prince of Orange, during the late war. An arrangement was made between France and Holland, by which their two fleets were to unite at a certain time and place. The Dutch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Stadtholder was at the bottom of the matter. This suspicion prevailed more and more. Yet as he could not be impeached, and no regular examination took place, he remained in his office; and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities and contentions. Had he been impeachable, a regular and peaceable inquiry would have taken place, and he would, if guilty, have been duly punished, — if innocent, restored to the confidence of the public.
Mr. KING remarked, that the case of the Stadtholder was not applicable. He held his place for life, and was not periodically elected. In the former case, impeachments are proper to secure good behaviour. In the latter, they are unnecessary; the periodical responsibility to Electors being an equivalent security.

Morris spoke in favor of impeachment having changed his view. He referred to the history of monarchies.

Mr. GOUVERNEUR MORRIS’S opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any length of time in office. Our Executive was not like a magistrate having a life interest, much less like one having an hereditary interest, in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the First Magistrate in foreign pay, without being able to guard against it by displacing him. One would think the King of England well secured against bribery. He has, as it were, a fee simple in the whole Kingdom. Yet Charles II. was bribed by Louis XIV. The Executive ought, therefore, to be impeachable for treachery. Corrupting his Electors, and incapacity, were other causes of impeachment. For the latter he should be punished, not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King, but the prime minister. The people are the King. When we make him amenable to justice, however, we should take care to provide some mode that will not make him dependent on the Legislature.
 

Should Impeachment Be Considered?

Madison laid out the justification for impeachment.

Mr. MADISON thought it indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive magistracy was very distinguishable from that of the Legislature, or any other public body, holding offices of limited duration. It could not be presumed that all, or even the majority, of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides, the restraints of their personal integrity and honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members would maintain the integrity and fidelity of the body. In the case of the Executive magistracy, which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

George Mason waxed prophetic in his address supporting impeachment.

Colonel MASON. No point is of more importance than that the right of impeachment should be continued. Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice? When great crimes were committed, he was for punishing the principal as well as the coadjutors. There had been much debate and difficulty as to the mode of choosing the Executive. He approved of that which had been adopted at first, namely, of referring the appointment to the National Legislature. One objection against Electors was the danger of their being corrupted by the candidates, and this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt? (emphasis mine)

If the current investigation of President Trump yields additional evidence of collusion with our adversary Russia and/or if he fires Robert Mueller, then I think Mason’s question has to be answered “no” in this case.
 

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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The 1787 Constitutional Convention – Delegates Debate How to Choose a President

a570af34_optJuly 19, 1787 (Click to read Madison’s notes on the day)

Summary

Today the delegates agreed to reconsider the appointment, duration, and eligibility of the president. They agreed to the electoral process via electors chosen by state legislators. The also decided that the executive would be eligible for re-election with a term of six years (obviously they revisited this later).

Influences on the Delegates

The loquacious Mr. Morris called for a citizen’s president as guardian of the poor. Morris repeatedly spoke of the nation as a struggle between rich and poor with the rich seeking power. Without specific reference, Morris said history proves him right.

Mr. GOUVERNEUR MORRIS. It is necessary to take into one view all that relates to the establishment of the Executive; on the due formation of which must depend the efficacy and utility of the union among the present and future States. It has been a maxim in political science, that republican government is not adapted to a large extent of country, because the energy of the executive magistracy cannot reach the extreme parts of it. Our country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it. This subject was of so much importance that he hoped to be indulged in an extensive view of it. One great object of the Executive is, to control the Legislature. The Legislature will continually seek to aggrandize and perpetuate themselves; and will seize those critical moments produced by war, invasion, or convulsion, for that purpose. It is necessary, then, that the Executive magistrate should be the guardian of the people, even of the lower classes, against legislative tyranny; against the great and the wealthy, who, in the course of things will necessarily compose the legislative body. Wealth tends to corrupt the mind; — to nourish its love of power; and to stimulate it to oppression. History proves this to be the spirit of the opulent.

Madison appealed to the principles of free government.

Mr. MADISON. If it be a fundamental principle of free government that the Legislative, Executive and Judiciary powers should be separatelyexercised, it is equally so that they be independently exercised. There is the same, and perhaps greater, reason why the Executive should be independent of the Legislature, than why the Judiciary should. A coalition of the two former powers would be more immediately and certainly dangerous to public liberty.

Generally, delegates made logical or rational arguments for the selection and retention of a president. There was no appeal to Moses or Deuteronomy. No delegate said or implied that the executive should sit for life because the Bible depicts Moses as being in charge for life. No delegate suggested that the government seek God’s man for the post of executive.
 

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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David Barton Picks History He Likes and Omits the Rest

Barton makes Adams, a Unitarian, sound like an evangelical Christian nationalist.

On his Wallbuilders Facebook page, self-styled historian David Barton engaged in some historical revisionism which illustrates his approach to history. In the image below, he reproduced only the part of an John Adams’ quote that he likes. Adams wrote this to Thomas Jefferson in a letter dated June 28, 1813 (Barton cited this letter here, also selectively edited on his website).

Barton also did this in The Founders Bible, a must avoid collection of historical half-truths surrounded by Holy Writ.
Adams did write those words to Thomas Jefferson but Barton omitted critical parts of the quote. Here is the relevant section of what Adams wrote to Jefferson with the bold letters being what Barton selectively included on his Facebook page.

Who composed that army of fine young fellows that was then before my eyes? There were among them Roman Catholics, English Episcopalians, Scotch and American Presbyterians, Methodists, Moravians, Anabaptists, German Lutherans, German Calvinists, Universalists, Arians, Priestleyans, Socinians, Independents, Congregationalists, Horse Protestants, and House Protestants, Deists and Atheists, and Protestants “qui ne croyent rien.”* Very few, however, of several of these species; nevertheless, all educated in the general principles of Christianity, and the general principles of English and American liberty.
Could my answer be understood by any candid reader or hearer, to recommend to all the others the general principles, institutions, or systems of education of the Roman Catholics, or those of the Quakers, or those of the Presbyterians, or those of the Methodists, or those of the Moravians, or those of the Universalists, or those of the Philosophers? No. The general principles on which the fathers achieved independence, were the only principles in which that beautiful assembly of young men could unite, and these principles only could be intended by them in their address, or by me in my answer. And what were these general principles? I answer, the general principles of Christianity, in which all those sects were united, and the general principles of English and American liberty, in which all those young men united, and which had united all parties in America, in majorities sufficient to assert and maintain her independence. Now I will avow, that I then believed and now believe that those general principles of Christianity are as eternal and immutable as the existence and attributes of God; and that those principles of liberty are as unalterable as human nature and our terrestrial, mundane system. I could, therefore, safely say, consistently with all my then and present information, that I believed they would never make discoveries in contradiction to these general principles. In favor of these general principles, in philosophy, religion, and government, I could fill sheets of quotations from Frederic of Prussia, from Hume, Gibbon, Bolingbroke, Rousseau, and Voltaire, as well as Newton and Locke; not to mention thousands of divines and philosophers of inferior fame.

Barton makes Adams, a Unitarian, sound like an evangelical Christian nationalist. However, when one reads the entire section, Adams was explaining to Jefferson his view that there was a set of general principles shared by Christians and non-Christians which formed a foundation for American independence. Note how Barton dramatically alters Adams meaning by stringing his words together to fit the Christian nationalist perspective.
No competent historian works this way.
*qui ne croyent rien – French for “those who believe nothing.”

The 1787 Constitutional Convention – Presidential Veto Power Decided

a570af34_optJuly 18, 1787 (Click to read Madison’s notes on the day’s debate)

Summary

Today was more harmonious but not without debate. The delegates agreed that the president would have veto power over Congress but that a 2/3 vote of the legislature could override the veto. They considered but remained deadlocked on who — executive v. Senate — would appoint the judges. They agreed to create district courts under the Supreme Court and began considering the need for republican governments in all of the states.

Influences on the Delegates

Most of the delegates relied on their experience in the states. For instance, Gorham said Massachusetts’ approach to the judiciary worked well.

Mr. GORHAM moved, “that the Judges be nominated and appointed by the Executive, by and with the advice and consent of the second branch; and every such nomination shall be made at least — days prior to such appointment.” This mode, he said, had been ratified by the experience of a hundred and forty years in Massachusetts. If the appointment should be left to either branch of the Legislature it will be a mere piece of jobbing.

Regarding the appointment of judges, Madison proposed what was very close to what eventually was included in the Constitution, but it was not ratified just yet.

Mr. MADISON moved, “that the Judges should be nominated by the Executive, and such nomination should become an appointment if not disagreed to within — days by two-thirds of the second branch.”

Since the delegates considered judges and the lower courts, today’s session is one where the Bible could have come up. Specifically, the example of Moses and the advice he received from his father-in-law Jethro to set up judges to handle the disputes of the people would have been relevant. Some delegates didn’t want lower federal courts, they wanted the state courts to handle lesser matters. However, no one raised the experience of the Hebrews or the authority of the Bible. They looked to their own experience or what seemed proper and wise in their own eyes.
If David Barton’s assertions about the biblical basis of the Constitution are true, one would expect to see more references to the Bible. One would expect some delegate or delegates to regularly use the Bible as an authority and a basis for the opinions expressed. However, reading through the debates makes it abundantly clear that the Bible was not used as a source of ideas or authority in any obvious way.

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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Was the Constitution's Political Vision Formed by the Bible?

a570af34_optIn the July 3 issue of the Philadelphia Inquirer, American University historian Daniel Dreisbach said the Constitution’s political vision was in part formed by the Bible. Dreisbach wrote that “The Constitution gives evidence of a political vision informed, in part, by the Bible, and it includes features that were familiar to a Bible-reading people.” He added that “the founders’ devotion to the separation of powers and checks and balances reflected a biblical understanding of original sin and a reluctance to vest unchecked government power in the hands of fallen human beings.”
If the delegates to the Constitutional Convention had Bible doctrine in mind when they framed the Constitution, they had a strange way of showing it.  I am in the middle of a summer long project to read James Madison’s daily notes on the debates during the Convention and I am not finding evidence of the Bible’s influence. The Convention got underway in earnest in late May of 1787 and proceeded six days a week until mid-September. Thus far, the delegates rejected a direct call to prayer made by Benjamin Franklin and rarely referred to religion in their remarks.
When Ben Franklin implored the delegates to seek the assistance of heaven, the delegates adjourned without voting on Franklin’s motion. Franklin later invoked the Scripture in a debate over qualifications for the presidency. In his Inquirer article, Dreisbach said “the delegates occasionally invoked the Bible in surprising and interesting ways.” Based on my reading, I think it would be more accurate to say the delegates rarely invoked the Bible.
Franklin’s reference to the Bible was supplemented by another persuasive appeal. Franklin’s comments were in response to a motion by Charles Pinkney to require “that the President of the U. S. the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a cleared unincumbered Estate to the amount of —– in the case of the President &c &c.” Pinkney wanted to limit these offices to land owners with an undetermined level of wealth. First, Connecticut’s Oliver Ellsworth spoke against the motion followed by Franklin.

Mr. ELSEWORTH [Oliver Ellsworth]. The different circumstances of different parts of the U. S. and the probable difference between the present and future circumstances of the whole, render it improper to have either uniform or fixed qualifications. Make them so high as to be useful in the S. States, and they will be inapplicable to the E. States. Suit them to the latter, and they will serve no purpose in the former. In like manner what may be accomodated to the existing State of things among us, may be very inconvenient in some future state of them. He thought for these reasons that it was better to leave this matter to the Legislative discretion than to attempt a provision for it in the Constitution.
Doctr. FRANKLIN expressed his dislike of every thing that tended to debase the spirit of the common people. If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. Some of the greatest rogues he was ever acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers, that they should be men hating covetousness. This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich, will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing into this Country.

Franklin’s use of Scripture was one aspect of his argument but he wanted to discourage a perception of partiality to the rich for other reasons. Specifically, Franklin thought Pinkney’s proposal would lower the reputation of the new nation among the enlightened as well as discourage immigration of common folk.
As I read the debates, religious references were used sparingly and as supplements to historical and political arguments. The delegates frequently refer to Greece and Rome, European governments, and Britain. Sometimes they explicitly refer to Montesquieu, whereas they frequently invoke his The Spirit of Laws without mentioning a direct source.
Having addressed Dreisbach’s overreach, I want to add that he is surely correct that the Christianity of the founders was one part of the mix of influences. For instance, Dreisbach is on more solid ground when he writes:

The founding generation drew on and synthesized diverse intellectual traditions in forming their political thought. Among them were British constitutionalism, Enlightenment liberalism, and classical and civic republicanism.
To this list of intellectual influences, one must add the Bible…

On the whole, however, I think Dreisbach skews his evidence to create an incomplete and ultimately inaccurate narrative. He says the Bible was the most frequently cited source over Locke and Montesquieu but doesn’t mention that a large number of these citations were in sermons from pastors and not by the founders. He doesn’t balance his presentation by noting that the federalists did not mention the Bible in their defense of the Constitution (the anti-federalists did reference the Bible, but they didn’t prevail). Dreisbach notes that the 1774 Continental Congress opened with prayer and Bible reading but failed to disclose that Ben Franklin’s  call for the Constitutional Convention to do the same thing was rejected by a sizable majority of delegates. Then, as explained above, Dreisbach invoked Franklin’s reference to Scripture in isolation without including the context of his other remarks and the rarity of their occurrence. Finally, during the Constitutional Convention, when separation of powers was brought up, the source of influence was more often Montesquieu than theology.
Some may object to my critique of a distinguished American historian. However, I say read the debates of the Constitutional Convention before you dismiss my response.  On the whole, I can’t find sufficient evidence that the Constitution’s political vision had much to do with the Bible. I realize that religion was very important at various points in the American experience and many of the founders expressed thanks to God. Some of the founders wanted the new republic to privilege religion and particularly Christianity. To me, the real miracle is that the consensus of the framers was to eliminate religious tests and to include language in the First Amendment enshrining freedom of conscience for all, even those who hold no religion.

The 1787 Constitutional Convention – The Connecticut Compromise Holds

photo-1474663898126-6f6f19a48b1d_optJuly 17, 1787 (click to read Madison’s notes)

Summary

The delegates had a busy day. The large state delegates caucused to discuss the matter of equal representation in the Senate. These delegates didn’t like the idea and felt equal representation was not consistent with a republican government. However, they decided not to challenge the Connecticut compromise. Madison’s notes regarding this meeting can be read in his posting for 7/16/17.
Regarding the new Congress, the delegates passed a motion allowing the new legislature to rule for the general interests of the United States and where states were “incompetent.” Then the delegates defeated a motion to give Congress power to veto state laws, however followed that by allowing that the laws and treaties of Congress were supreme law in the states. The delegates then turned to the executive branch and agreed again on a single chief executive elected by the legislature. They then debated the term of the president without finality in today’s session.

Influences on the Delegates

In his defense of the legislative veto of state laws, Madison invoked Britain favorably.

 A power of negativing the improper laws of the States is at once the most mild and certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony and subordination of the various parts of the Empire, but the prerogative by which the Crown stifles in the birth every act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied, through ignorance or partiality to one particular part of the Empire; but we have not the same reason to fear such misapplications in our system. As to the sending all laws up to the National Legislature, that might be rendered unnecessary by some emanation of the power into the States, so far at least as to give a temporary effect to laws of immediate necessity.

Will the President Be Like a Pope?

To promote fear of a legislatively chosen executive, Gouverneur Morris used the negative example of the Pope.

Mr. GOUVERNEUR MORRIS was pointedly against his being so chosen. He will be the mere creature of the Legislature, if appointed and impeachable by that body. He ought to be elected by the people at large — by the freeholders of the country. That difficulties attend this mode, he admits. But they have been found superable in New York and in Connecticut, and would, he believed, be found so in the case of an Executive for the United States. If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. He moved to strike out “National Legislature,” and insert “citizens of the United States.”

James Wilson looked to the experience of Poland and Massachusetts to respond to arguments regarding the choice of an executive by the people.

Mr. WILSON. Two arguments have been urged against an election of the Executive magistrate by the people. The first is, the example of Poland, where an election of the supreme magistrate is attended with the most dangerous commotions. The cases, he observed, were totally dissimilar. The Polish nobles have resources and dependants which enable them to appear in force, and to threaten the Republic as well as each other. In the next place, the electors all assemble at one place; which would not be the case with us. The second argument is, that a majority of the people would never concur. It might be answered, that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Massachusetts, where the Legislature, by a majority of voices, decide in case a majority of the people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue and cabal. A particular objection with him against an absolute election by the Legislature was, that the Executive in that case would be too dependent to stand the mediator between the intrigues and sinister views of the Representatives and the general liberties and interests of the people.

Morris then responded to the Poland example and raised Britain and Holland again:

If the Executive be chosen by the national Legislature, he will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence. This was the case in England in the last century. It has been the case in Holland, where their Senates have engrossed all power. It has been the case every where. He was surprised that an election by the people at large should ever have been likened to the Polish election of the first Magistrate. An election by the Legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption and cabal which are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies are always worse than those made by single responsible individuals or by the people at large.

Madison then provided a rational for separation of powers that invoked Montesquieu rather than the Bible.

Mr. MADISON.2 If it be essential to the preservation of liberty that the Legislative, Executive, and Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislature, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature by an undue complaisance, and thus render the Legislature the virtual expositor, as well as the maker of the laws. In like manner, a dependence of the Executive on the Legislature would render it the executor as well as the maker of laws; and then, according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive and Judiciary departments in several respects. The latter executed the laws in certain cases, as the former did in others. The former expounded and applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances, — first, the collective interest and security were much more in the power belonging to the Executive, than to the Judiciary, department; secondly, in the administration of the former, much greater latitude is left to opinion and discretion than in the administration of the latter. But if the second consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Executive, than the Judges, and forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a union between the Executive and Legislative powers, than between the judiciary and legislative powers. He conceived it to be absolutely necessary to a well constituted Republic, that the two first should be kept distinct and independent of each other. Whether the plan proposed by the motion was a proper one, was another question; as it depended on the practicability of instituting a tribunal for impeachments as certain and as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing and discussion, until a less objectionable expedient should be applied for guarding against a dangerous union of the Legislative and Executive departments.

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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The 1787 Constitutional Convention – Despite Call to Prayer and Compromise, Some Delegates Want to Quit

a570af34_optJuly 16, 1787 (click the link to read Madison’s notes)

Summary

Today, Elbridge Gerry’s committee reported with a very close vote in the affirmative. The delegates agreed to the following motion:

In Convention, — On the question for agreeing to the whole Report, as amended, and including the equality of votes in the second branch, it passed in the affirmative, — Connecticut, New Jersey, Delaware, Maryland, North Carolina, (Mr. SPAIGHT no) aye — 5; Pennsylvania, Virginia, South Carolina, Georgia, no — 4; Massachusetts, divided (Mr. GERRYMr. STRONG, aye; Mr. KINGMr. GORHAM, no).

The whole thus passed is in the words following, viz.

Resolvedthat in the original formation of the Legislature of the United States, the first branch thereof shall consist of sixty-five members, of which number New Hampshire shall send, 3; Massachusetts, 8; Rhode Island, 1; Connecticut 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North Carolina, 5; South Carolina, 5; Georgia, 3. But as the present situation of the States may probably alter in the number of their inhabitants, the Legislature of the United States shall be authorized, from time to time, to apportion the number of Representatives, and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the United States, the Legislature of the United States shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned: provided always, that representation ought to be proportioned according to direct taxation. And in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the States —

Resolvedthat a census be taken within six years from the first meeting of the Legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their Resolution of the eighteenth day of April, 1783; and that the Legislature of the United States shall proportion the direct taxation accordingly.

Resolvedthat all bills for raising or appropriating money, and for fixing the salaries of officers of the Government of the United States, shall originate in the first branch of the Legislature of the United States; and shall not be altered or amended in the second branch; and that no money shall be drawn from the public Treasury, but in pursuance of appropriations to be originated in the first branch.

Resolved, that in the second branch of the Legislature of the United States, each State shall have an equal vote.”

Influences on the Delegates

Today, the delegates passed the Gerry report and then argued a bit about the close vote. Tensions were so high that when Edmund Randolph suggested adjournment for the large states to discuss their options, William Patterson of New Jersey hoped he meant the delegates should adjourn and go home.

Mr. PATTERSON thought with Mr. RANDOLPH, that it was high time for the Convention to adjourn; that the rule of secrecy ought to be rescinded; and that our constituents should be consulted. No conciliation could be admissible on the part of the smaller States, on any other ground than that of an equality of votes in the second branch. If Mr. RANDOLPH would reduce to form his motion for an adjournment sine die, he would second it with all his heart.

Although the rest of the delegates disagreed with Patterson, it seems obvious from Madison’s notes that the frustration was great at this point. The 5-4 vote was a passing margin but without a feeling of consensus. Randolph did not seem to accept that vote as final.

Ben Franklin’s Call to Prayer Didn’t Resolve Disputes

Some Christian nationalist writers have proposed that the delegates came together with compromise after Ben Franklin’s call to prayer prior to the July 4 recess. A recent expression of that narrative is in Eric Metaxas’ book, If You Can Keep It (see this piece for a critical review of that book). Here is how Metaxas described the convention before the Franklin call to prayer.

But toward the end of the convention, after endless battles and little progress, things looked hopeless. The disagreements and arguments had mounted to an impossible height, so the eldest delegate, Benjamin Franklin, gave a speech to the assembly, imploring them to turn to God to break the impasse. Franklin and Jefferson were the least overtly religious of the founders, so the idea that Franklin should be the one to beseech the assembly to turn to God in prayer for an answer to their problems is evidence of their desperation, and it is startling. Here is his remarkable speech: (Metaxas, Eric (2016-06-14). If You Can Keep It: The Forgotten Promise of American Liberty (pp. 203-204). Penguin Publishing Group. Kindle Edition.)

Metaxas then reproduced Franklin’s speech. You can read the entire speech and my analysis of it here. In summary, Franklin made a motion for the delegates to open each session with prayer. Although the motion was seconded, it was never voted on and prayers were not offered at the Convention. Franklin later said only three or four delegates thought it necessary to offer prayers.
Metaxas doesn’t let that fact stop him from suggesting to his readers that the call to prayer led to a spirit of compromise and conciliation. Just after reprinting Franklin’s speech, 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.

Eventually, the Constitution was ratified but to attribute it to Franklin’s call isn’t warranted by Madison’s account. If anything, the delegates became more polarized after Franklin’s speech as today’s session illustrates.

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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Social Crusader and Metropolitan K.P. Yohannan Waxes Eloquent about Charity in India

K.P. Yohannan, source: Youtube
K.P. Yohannan, source: Youtube

Yesterday, K.P. Yohannan, self-styled social crusader and Metropolitan of Believers’ Church, published an article in the Indian online publication Bureaucracy Today on charity finances. Next issue, BT should invite Bernie Madoff to pen an article on business ethics.
 
Some highlights:

However, checks and balances in the NGO space, like in any other system are an integral part of this support mechanism.  Without effective and robust assessment machinery, it will become very difficult to sustain the credibility and utility of NGOs.
In fact, it would be fair to say that scrutiny and regulation of organizations in NGO space is far more critical than that of the private sector. This is because humanitarian organizations compliment and supplement the efforts of the state in a country of the size and diversity like ours. So whereas the government is at the forefront of inclusive growth for all sections of the society, civil society participation becomes imperative to achieve the expected pace of reform. And therefore it is sacrosanct that the credibility of these civil society participants is maintained with full caution in public eye.

This from the leader of an organization who was kicked out of the Evangelical Council for Financial Accountability in October 2015 and sanctioned by the Office of Personnel Management in January of 2016. GFA has not been reinstated to either organization. On the point of credibility in the public eye, GFA has not released an audited financial statement for the past two fiscal years.
Another quote:

There are a host of reasons why the narrative in India has changed to NGO versus state. Whereas some of the NGOs have been accused of funding anti-national activities, others have been accused of financial impropriety. These are grave charges and it is but natural that the relevant authorities have taken timely action to intervene.

This statement comes from the leader of the organization being sued for fraud in the U.S.
As GFA’s lawyer said, I am a blogger that regularly blogs and will continue to remind donors about the “grave charges” until the “relevant authorities” intervene.

The 1787 Constitutional Convention – Should Representation of New States Be Limited?

July 14, 1787 (Click the link to read Madison’s notes)

Summary

The delegates decided not to limit representation of new western states and defeated an effort to make Senate membership based on on population.

Influences on the Delegates

Madison appealed to the Dutch government as an example of one means of representation:

In the Dutch Confederacy the votes of the provinces were equal; but Holland, which supplies about half the money, governed the whole Republic. He enumerated the objections against an equality of votes in the second branch, notwithstanding the proportional representation in the first. 1. The minority could negative the will of the majority of the people. 2. They could extort measures, by making them a condition of their assent to other necessary measures. 3. They could obtrude measures on the majority, by virtue of the peculiar powers which would be vested in the Senate. 4. The evil, instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality. 5. The perpetuity it would give to the preponderance of the Northern against the Southern scale was a serious consideration. It seemed now to be pretty well understood, that the real difference of interest lay, not between the large and small, but between the Northern and Southern, States. The institution of slavery, and its consequences, formed the line of discrimination. There were five States on the Southern, eight on the Northern side of this line. Should a proportional representation take place, it was true, the Northern would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium.

By the end of his speech, Madison came back to the elephant in the room – the debate between the Northern and Southern states, principally over slavery.
Although no one took up his theme in this session, the delegates voted down a proportional system in the Senate.
For a nice summary of the Convention debate over slavery see this article.
 

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; there have been very few references to religion or the Bible. 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:

Facebook (blog posts and news)
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