JFC2017 – Page 9 – Warren Throckmorton

The 1787 Constitutional Convention – On the Ratification of the Constitution

July 23, 1787 (Click to read Madison’s notes on the day)

Summary

Today, the New Hampshire delegates, John Langdon and Nicolas Gilman arrived in Convention and took their seats. The delegates agreed to requiring an oath by both national and states officials to support the new governing document. They agreed to submit the Constitution to conventions of people of the states for ratification and decided to revisit the way the executive was elected. Influences on the Delegates

Influences on the Delegates

Gorham from Massachusetts tipped his hat to the clergy in his support for ratification by an assembly of the people rather than have ratification come via the elected state legislatures. He said in Convention:

3. In the States, many of the ablest men are excluded from the Legislatures, but may be elected into a convention. Among these may be ranked many of the clergy, who are generally friends to good government. Their services were found to be valuable in the formation and establishment of the Constitution of Massachusetts.

Far from proving a biblical basis for the Constitution, this statement nonetheless indicates a friendliness to participation of religiously devout people in government. Then, the clergy were friends to good government. Now, many of those who purport to be leaders among evangelicals hope to establish Christianity as a quasi-religion of the state.
Gouverneur Morris of Pennsylvania supported the idea of a people’s convention to ratify the Constitution since the people are the ultimate authority.

Mr. GOUVERNEUR MORRIS considered the inference of Mr. ELLSWORTH from the plea of necessity, as applied to the establishment of a new system, on the consent of the people of a part of the States, in favor of a like establishment, on the consent of a part of the Legislatures, as a non-sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the Legislatures. Legislative alterations not conformable to the Federal compact would clearly not be valid. The Judges would consider them as null and void. Whereas, in case of an appeal to the people of the United States, the supreme authority, the Federal compact may be altered by a majority of them, in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendment moved by Mr. ELLSWORTH erroneously supposes, that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.

The consent of the governed is where government derives just powers. Rather than consider the Bible or Christianity as supreme authority, Morris asserted that in a republican government the people via their representatives decide.
As a reminder that the Southern states wanted to bake slavery into their Constitution cake, General Pinckney said near the end of the session on this day:

General PINCKNEY reminded the Convention, that if the Committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their report.

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 – Back to the Judiciary

July 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

The 1787 Constitutional Convention – The President May Be Impeached

July 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

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

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.