JFC2017 – Page 10 – Warren Throckmorton

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

July 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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The 1787 Constitutional Convention – Presidential Veto Power Decided

July 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

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

In 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

July 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

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

July 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. GERRY, Mr. STRONG, aye; Mr. KING, Mr. GORHAM, no).

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

“Resolved, that 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 —

“Resolved, that 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.

“Resolved, that 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.