It has become evident to the delegates that they cannot make the decisions about the executive independent of a conversation that discusses the executive’s election, term, powers, and removal in a holistic way. Thus the Brearly Committee is tasked with such a conversation. The result – Article II of the Constitution. Read on for some of the key points that were discussed. Can you spot the things that have changed since the original conversation and can you think of instances when some of the checks & balances set up in this Article have been applied?

How shall the executive be elected and for how long?

Alexander Hamilton was worried the executive would be “a Monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the Government.” Thus he saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. Thus it was agreed that “In every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-president.”

James Wilson reminds the delegates they did not want an aristocracy so they did not want the Senate to elect the president. Concurrently, Edmund Randolph stated “We have in some revolutions of this plan made a bold stroke for monarchy. We are now doing the same for an aristocracy.” Thus it was decided that “Each state shall appoint in such a manner as its Legislature shall direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature.”

Later it was agreed that the “Senate shall choose the Vice-President in the event of a tie for the Vice-Presidency.”

What shall be the powers of the Executive Office?

Much of the discussion regarding the powers of the executive office was related to separation of powers between the Legislative Branch and the Executive Branch. It had been proposed the Vice President act as the President of the Senate. George Mason stated that he believed that if the vice president was President of the Senate than the powers were not really divided.

On nominations – Rufus King was worried that “the people [would] be alarmed at an unnecessary creation of new Corps which must increase the [expense] as well as influence of the Government.”

Both men were overruled. The committee agreed that allowing the Vice President to serve as President of the Senate was a check on the Legislative Branch. And requiring a 2/3 consenting vote from the Legislative Branch would check the Executive Branch on treaties and nominations.

What is the process for removal from office?

The delegates were in agreement that they need to create a process for removal of the executive if they were to commit “high crimes [and misdemeanors against] the State”. Barring a resignation, they agreed there should be a trial. They were not however in agreement of who should proceed over the trial. James Madison believed that a trial by the Senate would make the executive “improperly dependant” on them in day to day business. He preferred that the Supreme Court hold the trial.

Gouverneur Morris disagreed because he thought that the Supreme Court was too few in number and might be subject to corruption and others added that they had already given the executive the power to appoint the judges.

After discussion, it was decided that the House of Representatives would be responsible to request impeachment and that the Senate would hold the trial.

For more resources on how to teach about Article II and the Executive Branch – check out our website: http://www.articleii.org/

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Philadelphia -

The eleventh anniversary of independence saw the Convention at an impasse. The delegates could not agree on the question of how to structure a legislative body for the union – because all knew this decision raised the question of whether they should merely strengthen the confederation, or create a new national government in its place.

The July 3-4 adjournment for Independence Day gave many delegates a respite from wearying debate. For eleven members of the committee chaired by Massachusetts’s Elbridge Gerry, however, debate continued, as they met on July 3 to discuss a practical solution to the issues that the Convention was struggling to solve. On July 4, delegates congregated at Philadelphia’s Race Street Church to hear a speech commemorating independence. On July 5, the fireworks resumed.

The Gerry Committee Report

When the Convention resumed its business on Thursday morning, July 5, the Gerry Committee was prepared with a report. The Committee, which consisted of one delegate from each of the eleven states represented at the Convention, was asked to handle the sensitive issue of representation in a union that some still view as federal but others are trying to make national. Elbridge Gerry (who had signed the Declaration of Independence in this same city eleven years ago) rose to explain the report to the Convention. The report had three parts, which gave form to the view that had been developing of a union partly national and partly federal:

1. The first branch of legislature will be elected by population (as the large states had called for) with states being apportioned one member for every 40,000 inhabitants.
2. All bills that raise and appropriate money will originate in the First House and shall not be amended by the Second House
3. In the second branch of the legislature each state will be represented equally.

Debate in the Assembly and in Committee

Gerry admitted to the Convention, after presenting the report, that it was a very thin compromise, and that Committee delegates “agreed to the Report merely in order that some ground of accommodation might be proposed”. None of the Committee members, he continued, was “under any obligation to support the Report”.

Nor were some of the Convention’s leading delegates inclined to support the Gerry Committee’s suggested compromise. Mr. Madison seems to have viewed the compromise as a crippling blow to the Virginia Plan, which had been designed to combat what Madison saw as the vices of the political system under the Articles of Confederation. He rose and in a long speech proclaimed his fear that “the Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U. S.” on the one hand, or of “displeasing these by justly gratifying the larger States and the majority of the people” on the other.

He then made the issue personal, recalling a statement made by Mr. Bedford (of Delaware) prior to the adjournment for Independence Day. Bedford, chafing against the nationalists’ plan, had challenged, “We have been told with a dictatorial air that this is the last moment for a fair trial in favor of a good Government. It will be the last indeed if the propositions reported from the Committee go forth to the people.” Bedford seemingly taunted the large states, saying that they “dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” Though Bedford qualified that “He did not mean by this to intimidate or alarm,” Madison responded to that comment as if it were a threat, stopping just short of calling Bedford a turncoat, and hinting that the large states might just challenge stubborn states like Delaware to choose between joining the union and courting some foreign ally. Madison lectured, “if the principal States comprehending a majority of the people of the U. S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States would by degrees accede to it.”

Other nationalists joined Madison’s offensive against the compromise. James Wilson charged that the Committee exceeded its powers (a charge that seems ironic, given Wilson’s support of the Virginia Plan, which many thought exceeded the Convention’s mandate of simply revising the Articles of Confederation). Gouverneur Morris thundered against those who acted as if “we were assembled to truck and bargain for our particular States” and warned “This Country must be united. If persuasion does not unite it, the sword will.”

Perhaps sensing a concerted effort on the part of the nationalists to paint him as disloyal to the Confederation, Mr. Bedford, rose to state he had been misunderstood, and had no intention that Delaware or other small states should seek protection outside of the union. But others were not cowed by the bluster of the nationalists. Several delegates rose to offer support of the Gerry Committee’s report, or at least to a hearing of the report. None was more forceful in defense of giving the Gerry Committee report a hearing than George Mason. The surly Virginian was growing impatient, and cautioned quarrelsome colleagues that “the Report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation.”  But Mason was not about to finish there, proclaiming that “he would bury his bones in this City rather than expose his Country to the Consequences of a dissolution of the Convention without any thing being done.”

Mason’s stern words led directly to consideration of the provisions of the Gerry Committee’s report.

For more detailed information on the Constitutional Convention, please visit Prof. Gordon Lloyd’s web companion to the Philadelphia Convention.

Here’s what Jaclyn had to say about her efforts to increase her fellow students’ interest in civics:

My name is Jaclyn Burge, and I am Californian who was fortunate enough to attend the Constitutional Academy last summer!  I have been very happy to bring back my passion for the Constitution home with me, since then I founded a Pre-Law Club at my school, with the following goals:

• To promote citizenship and active participation in society.
• To learn about the ways of the U.S. Government, Constitution, and law.
• To provide members with an understanding of how to pursue a career in law.
• To debate and investigate important issues in our society.
• To develop the qualities of patriotism, justice, and good will.

For a new club with a more academic purpose than some of the other club on campus, I was impressed by the interest students showed. Some of our major events included observing the California Supreme Court’s educational visit to a courthouse near our school and setting up a school wide election to vote for the new California governor, senators, and propositions.

Our major project for the second semester was a mock trial, People vs. The State of Arizona, on the Arizona Immigration Law.  We applied for and received a $500 grant from the League of Women Voters to do this.

The trial included the defense and prosecuting attorneys (I was the defense), five witnesses, a judge, and a bailiff.  Each witness was able to choose their own background story and get creative with the scripts each of them wrote to answer our attorney questions.  It took a couple of months to prepare the script, written by the students involved with the help of our advisor, and rehearse.  We preformed it for the League of Women Voters on Friday, May 20^th.

Our goal was to reveal the constitutional issues on both sides of the case, and a jury of 12 students was chosen to determine the ruling at the end.  For some background information, the Arizona Law, also known as The Support Our Law Enforcement and Safe Neighborhood’s Act (SB 1070), is legislation designed to greatly decrease, if not eliminate, illegal immigration within Arizona’s state borders.  Police would have the latitude to question suspected illegal immigrants in the course of a stop for other criminal activity.  State employees would be required to ask applicants for proof of legal residency if a client is requesting services or employment, and if found in violation of SB 1070, fines could be incurred from $1,000 to $5,000 a day.  According to the Peoples’ Case, our prosecuting attorney emphasized his belief that the law violated the Exclusionary Rule, Due Process, the Equal Protection Clause, and laws against Racial Profiling.  According to the State’s Case, our defense side emphasized that according to the amendment to the law (HB 2162: “prosecutors would not investigate compliance based on race, color, or national origin,” but only by “lawful stop, detention, or arrest.”) racial profiling would not be a factor. The State’s deference believed the law simply enforces federal law already in place concerning illegal immigration, it is an issue of state and national security, the federal government has not done its duty to protect the state borders as spelled out in Article IV, Section 4 of the U.S. Constitution, and the legislation is constitutional under the Necessary and Proper Clause.

We had 5 witnesses: 2 for the People and 3 for the State.  For the People, the first witness was Isaac Rodriguez, a University of Colorado student studying civil engineering and a legal U.S. Citizen who felt discriminated against due to racial profiling he felt was in place due to the Arizona legislation.  Despite the out-of-state tuition costs, he chose to move to Colorado rather than stay in his home state to attend the University of Arizona to avoid the discrimination.

The second witness was an illegal immigrant named Javier Garcia who came to Arizona at the age of 3, learned the truth from his parents when he was 17, and is now 41.  He is now a very successful Arizona businessman, model “citizen,” and father of three daughters, but has to leave Arizona with his family due to the legislation. In cross-examination, I highlighted that he had 24 years to try to fix his illegal residency issue, but chose to focus on other things instead.

For the State, I first questioned Governor Jan Brewer, who gave testimony to the dangers of illegal immigration and signed the law, endorsing it as a necessity to protect Arizona citizens. The cross-examination brought up the Equal Protection Clause of the 14th Amendment, pointing out that the language says “any person,” not “any citizen.”

The second witness was David Levinsky, a legal Russian immigrant and U.S. citizen who waited 6 years before he could move here with his family, maintaining that the process was fair and condemning those who disrespectfully come here illegally.  The cross-examination asked him if he was aware of the horribly inhumane conditions just 10 miles south of the Arizona border, and asked if he would have done whatever was necessary to bring his children here away from those life-threatening conditions (to which Mr. Levinsky replied, “No, I would not break the law,” and the prosecution attorney rolled his eyes).

Next up was Sarah Sanders, an Arizona resident and U.S. citizen, whose son at age 17 was shot and killed by an illegal immigrant, while she was fighting for our country in Iraq.  She believed her son’s death could have been prevented if a law such as SB 1070 was in place at the time, but the cross-examination pointed out that the murderer was also a gang member, and thus this had nothing to do with the law.

Finally, after our closing statements, the jury went outside to deliberate and rendered a verdict in favor of the People, citing Racial Profiling and the absence of Due Process.  Even though my side lost, it was a win in my mind to be able to share my love for the Constitution with so many students as they began to think critically about what it means to us today.  The League of Women Voters was very impressed by our project, and I hope that the club will continue to do this annually after I graduate this year!

-          Jaclyn

What have you done as a teacher to increase civic engagement among your students? Do you think the students in your school would participate in a club similar to this one?

Students – what could you do in your school to help your fellow students appreciate the Constitution more?

• 7 artfully concealed prohibited items found at checkpoints
• 13 firearms found at checkpoints

In this light, taking off our shoes and going through metal detectors might be reasonable. But how far is too far? CBS news picked up this story about a pat-down at the Kansas City airport of a 6-month old baby after his stroller alarmed during explosive screening.

Reaction questions:

• In your opinion is this an acceptable part of post-9/11 security?
• In your opinion are full-body scanners and/or pat-downs here to stay?
• Ultimately, do you feel safe when flying?

“Does the bill do enough to protect our privacy?” The St. Louis Today reported on Monday that federal investigators have recently begun obtaining warrants to search Facebook for “photographs, email addresses, cell phone numbers, lists of friends who might double as partners in crime, and see GPS locations that could help disprove alibis”.

These investigations raise “constitutional and evidentiary issues that must be considered, including privacy and the right against unreasonable searches and seizures” according to Chief U.S. District Judge Gerald E. Rosen, of Wayne State University.

Questions Raised:

• Do Facebook searches violate the Fourth Amendment?
• Does Facebook need to disclose when they get requests for user account information?
• Do search warrants give the Federal Government enough authority to search user account information on Facebook?
• Do you think user information on Facebook should be admissible in criminal prosecution?
• Should Congress consider adding protections to their internet bill of rights that relate to social networking sites?