Philadelphia – The end of May saw the Convention responding to the Virginia delegation’s bold plan. The Virginians had proposed replacing the Articles of Confederation – a task far beyond what many Convention delegates thought they were authorized to do – with a powerful national government. When proponents of this plan failed to win agreement that such a radical plan was necessary, they moved to the more basic task of achieving consensus on the establishment of a national government consisting of legislative, executive and judicial branches. The devil would be in the details, and through the first week of June, delegates worked through the details of the Virginia Plan. Hiding under those details, however, was the question of whether the delegates were debating a revision of a confederation of sovereign states, or the creation of an entirely new national government that would act directly on citizens.

The Legislative Branch

This question lay under the debate about how to apportion representatives to the national legislature. The Virginia Plan had called for apportionment by population. Its advocates eagerly pushed this proposal until George Read, from tiny Delaware, drew a line in the sand. The delegates from Delaware, he pointed out, were not authorized to give up Delaware’s equal representation, and any attempt to push that issue might force the Delaware delegation to leave the Convention. If the states retained equality of representation, Madison feared, this would endanger the idea of a strong national government and permit the idea of a confederation to continue. He proposed a parliamentary “expedient”  to send this issue to a committee, thus “saving the Delaware deputies from embarrassment”; Mr. Read would not relent, and the motion was tabled.

Though some features of the Virginia Plan earned agreement – a bicameral legislature, the election of the lower house directly by the people, and certain powers of the legislative branch, – there were more setbacks. In particular, the mode of election of the upper house emerged as a point of controversy, and one that was not immediately solved. Further, Madison himself relented on a feature of the Virginia Plan which gave the national legislature the power to call forth force “against any member of the Union failing to fulfill its duty”. Madison (in a statement that Southerners would remember decades later) observed, “A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

The Executive Branch

June 1^st, 2^nd, and 4^th saw extensive discussion of the establishment of the Executive branch. Fear of monarchy made this a complicated debate. The elder statesman, Mr. Benjamin Franklin, followed a long pause in the discussion by encouraging the delegates to make their voices heard. The Convention delegates finally agreed that the Executive branch should be comprised of one person, the President, who would hold the power to affect national laws, appoint officers not otherwise specified, and veto legislation. With great concern surrounding the corruption possible if these powers lie with one person, the delegates determined that any presidential veto will be subject to overrule by a 2/3^rds majority of either house. This was not the last that would be said about the Executive branch, however.

The Judicial Branch

With consensus surrounding the need for a final tribunal in the nation, early June saw the creation of the Supreme Court. The delegates agreed upon the need for a supreme tribunal, yet had many questions surrounding the selection of judges and the establishment of “inferior tribunals” throughout the United States.

On June 5^th the assembly determined that the legislative branch will have the authority to name judges in the Supreme Court and allowed for life-time tenure in office pending “good behavior.”  No consensus could be reached regarding the establishment of “inferior tribunals” and was postponed until a later date.

New State Representation in the Union

Resolution 10 in Edmond Randolph’s Virginia Plan was approved to allow the admission of new states into the country if their bounds feel within the United States.

Philadelphia, September 10 – 15, 1787

As the weather finally cools a bit and the Convention enters what will be the final week of deliberations, the main topics of discussion are the amendment process and the ratification process.  On Monday, September 10, Elbridge Gerry raises a concern about the amendment process—he fears that the new constitution could be amended to “subvert the State Constitutions altogether.” James Madison’s response increases the voice of the states by requiring ratification of a constitutional amendment by three-fourths of the state legislatures or conventions in three-fourths of the states.  John Rutledge of South Carolina is concerned that states opposing slavery could use the amendment process to reduce the institution’s protections.  Therefore, the delegates add this clause to the amendment process: “Provided that no amendments which may be made prior to the year 1808, shall in any manner affect” the passages related to slavery.

The conversation turns to the ratification process for the new constitution.  In order to establish the new national government, do they need the approval of Congress?  Do they need all thirteen states to sign on?  Will nine states be enough?  Gerry is concerned that it is improper to change the government without the approval of the Confederation Congress.  After all, the Convention holds its authority from Congress.  Edmund Randolph of Virginia believes that an even more involved process is necessary for the new constitution to take effect.  While he knows the delegates will probably vote down his proposal, he thinks the new government should only take effect after a three-step process: 1. Submit the draft constitution to Congress for its approval. 2. State conventions should be able to submit amendments to the draft constitution.   3. The 1787 draft constitution, along with the state-suggested amendments, should be submitted to a second general convention, which would then develop the final Constitution.  Gerry agrees with Randolph’s plan.  Madison’s notes record: “Mr. Gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the Articles of Confederation.  If nine out of thirteen can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.”  Randolph is correct—his call for a second constitutional convention, although it wins the support of both Mason and Gerry, is rejected.  James Wilson of Pennsylvania believes that making the assent of Congress, or requiring all 13 states to ratify, would be “insuperable obstacles.”  The convention votes not to require Congress’s approval, but that upon ratification of any 9 states, the Constitution will take effect.

On Wednesday, September 12, the Committee of Style presents the plan, reading it aloud by paragraphs, and orders that printed copies of this almost-final draft be provided to the delegates.  Accompanying the draft will be a letter from the President of the Convention, George Washington, to the President of the Congress, Arthur St. Clair of Pennsylvania.  Excerpts of this letter are shown below:

Sir,

We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable.

The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union…

It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: individuals entering into society, must give up a share of liberty to preserve the rest.  The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.  It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular interests.

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence…

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

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 –

As September began, the Convention had made remarkable progress toward drafting a new Constitution, but many questions had been left for later. The delegates agreed “to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State….” The “Brearly Committee,” chaired by David Brearly of New Jersey, reported back its suggestions for how to address difficult issues related to the powers of Congress and the shape of the Executive branch.

One issue that touched on the relationships of the states to one another and to the national Legislature was the full faith and credit clause. The Articles of Confederation had such a clause, though it applied very narrowly to state courts: “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” The Brearly Committee report recommended expanding the scope of this full faith and credit to legislative as well as judicial proceedings, and granting the national Legislature a new power to enforce compliance. Delegates settled on the language we now read in Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The Brearly Committee also made recommendations regarding the powers of Congress over commerce and finance. Congress, it was agreed, could “lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare, of the U. S.” Congress would also be given the power of regulating relations with Indian tribes, of making laws to govern federal lands, and of granting patents to protect the rights of inventors and authors of property in their ideas.

Finally, delegates had already agreed to give Congress – as opposed to the Executive – power to “declare war”. The Brearly Committee’s report led to the granting of two new powers to Congress that minimized the Executive power over war.  First, Congress, and not the Executive, was empowered to grant letters of marque and reprisal, which effectively deputized private vessels to capture vessels suspected of piracy and bring them for trial. Second, Congress was empowered “to raise and support armies” but it was stipulated that “no appropriation of money to that use shall be for a longer term than two years.” These powers, among others, reflected a general wariness among the Convention’s delegates of granting too much power to the Executive branch. This wariness is also apparent in the Convention’s inability to settle on the Chief Executive’s powers, mode of election, and term of office, until very late in the Convention. That debate will be the subject of our next post.

Philadelphia – When the Convention began their work in earnest in the spring of 1787, its delegates must have known that the complex issue of slavery would be a “make-or-break” matter for the new republic.  Indeed, the volatile issue would wait a full three months into the Convention before being tackled with any level of depth, culminating in a series of compromises over the course of a week in late August 1787.

As there was little presumption amongst the delegates that slavery could, or would, be prohibited outright, the first and easiest element of “the slavery question” was how slaves might be counted within a state’s population for purposes of representation and direct taxation.  On Monday, August 21^st, the Convention took up a piece of the Virginia Plan (introduced in late May) that would set proportional representation of slaves at three-fifths.  The three-fifths proposal, known as the “federal ratio,” was not novel to most in attendance as it had been proposed as an amendment to the Articles of Confederation as early as 1783.  Even though it failed to be ratified due to the near-impossible requirement of that document that any changes acquire unanimous consent, the three-fifths principle nevertheless garnered enough acceptance during the 1780s so as to provide a ready solution to the question at the Convention.  On August 21^st, 1787 the Convention adopted the “Three-Fifths Compromise” with relatively little debate, save an objection by Luther Martin of Maryland who suggested it would serve as federal encouragement of the continued importation of slaves.

In Martin’s objection lay the real heart of the matter, and provided the most explosive debate.  Would Congress have the power to mediate the slavery question at all?  Would the institution be allowed to expand or merely tolerated until it died out?  Could its existence and continuation even be discouraged by the federal government?

On August 21^st the Convention took up debate on language put forth by the Committee of Detail’s August 6^th report.  Driven largely by the demands of North Carolina, South Carolina and Georgia, the language read:  “No tax or duty shall be laid by the Legislature…on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.”  This proposal was a both a blanket prohibition on the power of Congress to ever determine the ultimate fate of the institution, and a denial of power to simply frustrate it through taxation of the slave trade enterprise.

The recorded comments of August 22^nd are enlightening, and even a bit surprising.  Roger Sherman of Connecticut – an opponent of slavery from a “free” state – proposed the language be adopted as-is, suggesting that slavery was on the decline in some southern states and would continue towards its natural death if left alone to do so.  George Mason – himself a slave owner from the southern state of Virginia – conversely argued that it was essential for the national government to have the power to prevent the increase and spread of slavery, observing that “[e]very master of slaves is a petty tyrant…[bringing] the judgment of heaven on a Country.”  Oliver Ellsworth of Connecticut stated that if the immorality of slavery were considered the Convention should go further and free all slaves, but then ultimately suggested that compromise would be best.  Charles Coatsworth Pinckney of South Carolina gave a passionate defense of the economic necessity of slavery to the union, to which John Dickinson of Delaware stated it was “inadmissible on every principle of honor and safety that the importation of slaves should be authorized to the States by the Constitution.”  John Rutledge of South Carolina observed that his state, along with North Carolina and Georgia, might never agree to the Constitution if the language were changed, but Edmund Randolph of Virginia stated that he “could never agree to the clause as it stands.”  Randolph suggested the matter be referred back to the Committee of Detail for compromise language to be drafted, as an impasse on the current language loomed large.  The Convention agreed to Randolph’s suggestion by a vote of 7-3.

The Committee reported back on August 24^th with language that would permit Congress to tax the slave trade, but prohibited outright interference in it until 1800.  The next day Pinckney suggested changing the 1800 proposal to 1808, to which James Madison derisively commented “[t]wenty years will produce all the mischief that can be apprehended from the liberty to import slaves…[s]o long a term will be more dishonorable to the National character than to say nothing about it in the Constitution.”  Madison also “thought it wrong to admit into the Constitution the idea that there could be property in men.” The 1808 language nevertheless passed by a vote of 7-4.  Interestingly, all four noes – New Jersey, Pennsylvania, Delaware and Virginia – voted as such because they thought the language too forgiving of slavery.  No slave-holding state, save Virginia who seemingly expressed an anti-slavery position, voted against giving the new federal government a future power to interfere with the institution.

Far from our current popular interpretation of the Founders as moral and political failures on this most important question, the details of the Convention bear out a very different story: that of fallible men grappling with the moral, social, political and economic intricacies of that horrible institution within its – and their – context.  In reality, they had to choose between a union that allowed for slavery in some form, and no union at all.  While they very clearly chose union AND slavery, they did so in a way that, it was hoped, would loosen the institution’s stranglehold on the union and provided powerful avenues to encourage its eventual demise.

- Written by Jay Shackett, guest author.

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

The Convention adjourned from July 26^th to August 6^th to allow the Committee of Detail – composed of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania – to prepare a rough draft of a constitution, based on the series of resolutions the delegates had debated, amended, and debated again. When the Convention re-convened, the Committee of Detail presented its report, made up of twenty-three articles. The Convention spent the remainder of August reviewing and further revising these articles.

We the People of…

Delegates quickly agreed to accept the Committee of Detail’s preamble and Articles I and II, affirming the new government would be called the Unites States of America and consist of Legislative, Executive, and Judicial branches. This agreement masked the critical issue that the Convention had debated throughout – was this to be a union of states or of people? The Committee of Detail’s constitution began, “We the people of the States (emphasis added) of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” The Convention would not end with that language in the preamble.

Representation: Who, What, and How Many?

Discussion of the Committee of Detail report continued to include the structure and powers of the legislative branch. Some of the key questions included: Who can elect representatives? How many representatives will there be? What will be their qualifications?

Delegates debated whether to allow non-land owners to the right to vote for House members, or reserve the franchise to property owners. Gouverneur Morris wanted to restrict voting to those with property, considering them more educated and better able to choose wise leaders. “The ignorant and dependant,” Morris stated, “can be… little trusted with the public interest.” Colonel Mason countered arguments of this kind, saying all citizens should have equal voting rights and privileges.  Doctor Franklin sided with Colonel Mason believing that restricting the right to vote to land owners would cause contention among the people. In the end Morris’s proposal to restrict the franchise to property owners was defeated soundly (7-1-1).

Just as the Convention rejected a plan to restrict voting to property owners, they also rejected a proposal to restrict elective office to property owners. South Carolina’s Charles Pinckney moved 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 unencumbered Estate” – in an amount to be agreed upon by members of the Convention. This proposal went nowhere. Benjamin Franklin expressed his “dislike of every thing that tended to debase the spirit of the common people,” and observed  that “some of the greatest rogues he was ever acquainted with, were the richest rogues.” Madison reports that Pinckney’s motion “was rejected by so general a no, that the States were not called.”

The Convention did have a sentiment in favor of strong citizenship requirements for legislators. The Committee of Detail’s report required members of the House be U.S. citizens for three years prior to election, and members of the Senate for four years. Some, including George Mason and Morris, agreed that a lengthy citizenship requirement would protect the legislature from foreign intrigue. Others, including Madison and Franklin, pointed to the number of foreign friends who had helped the states during the war for independence. Delegates sided with Mason and Morris, agreeing to requirements that members of the House be citizens for seven years and members of the Senate for nine years prior to election.

On the question of how many representatives would make up the national legislature, Article IV of the Committee of Detail Report stated that the House of Representatives would initially consist of sixty-five members, and that in the future, members of the House would be added “at the rate of one for every forty thousand.” Madison, expecting the Union to grow rapidly, thought that rate would quickly lead the House to grow too large. Others thought that time would make this issue irrelevant. Mr. Nathaniel Gorham from Massachusetts asked, “Can it be supposed that this vast country including the Western territory will 150 years hence remain one nation? Mr. Oliver Ellsworth observed that “If the government should continue so long, alterations may be made in the Constitution” through the amendment process. Delegates agreed to add the language “not exceeding” to the one representative for 40,000 citizen ratio, making that a ceiling and not a floor. Controversy over this provision would re-emerge before the end of the Convention, however.

The Specter of Slavery

Likewise, controversy would emerge about slavery. Consideration of the apportionment of representatives raised the question of whether slaves would be included within that ratio. Morris rose on August 8 and gave a withering criticism of the institution. Moving to specify that this ratio would include only “free” inhabitants, Morris called slavery “a nefarious institution,” and “the curse of heaven”. Comparing free with slave states, Morris noted, on the one hand, “a rich and noble cultivation [which] marks the prosperity and happiness of the people,” and on the other “the misery and poverty which overspread the barren wastes of Virginia, Maryland, and the other states having slaves.” Morris’s motion was defeated 10-1, but the issue of how slavery would be addressed by the new union was by no means resolved.

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

Philadelphia –

The end of July marked a significant milestone at the Constitutional Convention. Having considered and debated multiple proposals and counter proposals on the structure of a new government, the delegates were ready to compose a written version of the resolutions they had agreed upon.  A “Committee of Detail” – composed of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania – was charged with compiling the draft.

The Convention adjourned from July 26^th to August 6^th to allow the Committee to prepare a rough draft of a constitution. When the Convention re-convened, the Committed of Detail presented its report, made up of twenty-three articles, some highly detailed. George Washington and Convention Secretary William Jackson made edits on a single copy of the report from August 6^th to September 3rd, officially recording the Convention’s revisions.

August 7^th began on an agreeable note as the delegates quickly resolved to accept the preamble and Articles I and II, affirming the new government would be called the Unites States of America and consist of Legislative, Executive, and Judicial branches.

Nevertheless, this agreement masked the critical issue that the Convention had debated throughout – was this to be a union of states or of people? The Committee of Detail’s constitution began, “We the people of the States (emphasis added) of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” The Convention would not end with that language in the preamble.

Similar to the Constitution we know, the Committee of Detail report started with the structure and powers of the legislative branch. Some of the key questions included: Who can elect representatives? How many representatives will there be? What will be their qualifications?

Delegates debated whether to allow non-land owners to the right to vote for House members, or reserve the franchise to property owners. Gouverneur Morris wanted to restrict voting to those with property, considering them more educated and better able to choose wise leaders. “The ignorant and dependant,” Morris stated, “can be… little trusted with the public interest.” Colonel Mason countered arguments of this kind, saying all citizens should have equal voting rights and privileges.  Doctor Franklin sided with Colonel Mason believing that restricting the right to vote to land owners would cause contention among the people. In the end Morris’ proposal to restrict the franchise to property owners was defeated (7-1-1)

It was agreed that members of the House would represent no more than 40,000 constituents. This would equate to 56 Members of the House, including a member from Delaware, which did not yet have 40,000 residents. Delegates decided that House members must have been citizens for at least 7 years, revised up from 3 years, to insure they possessed adequate local knowledge.

Regarding the Senate, delegates voted that each state would have two Senators and each Senator would have one vote in drafting legislation. Senators would be required to be at least 30 years of age. Senators would be required to be residents for at least 9 years. Though Mr. Pickering proposed a property qualification for Senate eligibility of at least $100,000, delegates rejected this proposal.

Philadelphia –

Establishing the Presidency

One of the most persistent topics discussed in the Philadelphia Convention was the structure of the presidency. The Framers had grappled with this topic on June 1, 2, 4, 9, and 18, and then again on July 17, 18, 19, 20, 24, 25, and 26. The main issues were questions of the President’s re-eligibility, term of office, method of election, and powers of office. Not only did the delegates debate various alternatives to resolve each of these issues, they also debated which of these issues should be resolved first. They ended up repeatedly returning to each.

In early June, delegates decided that the Executive would be one individual (rather than a committee), who would serve a seven-year term and be ineligible for re-election, but reached no decision concerning the method of election. After working through several other alternatives, the Framers in late July returned to the position that the President should be elected by the national legislature for a seven-year, non-renewable term. On July 24, one suggestion was that members of Congress be chosen by lot to select the President, to which Rufus King replied, “We ought to be governed by reason, not by chance.”

On Wednesday, July 25, the delegates returned yet again to the method of selecting the President. James Madison summarized the alternatives and objections to each. If the President were selected by the national legislature, or by the legislatures of the states, or by the governors of the states, then he would be subservient to the selecting group because they would only elect someone whom they expected to be able to control.

The result would be a likelihood of corruption and misconduct in office, and not the separation of powers that allowed each branch to function as a watchdog over the others.

Madison argued that this left two options: direct election by the people, or appointment by a group of electors chosen by the people. The convention’s delegates distrusted direct democracy. They were determined that the new government would embody republican principles, but believed that most people were unlikely to make wise choices in direct election of the President. Another argument against direct election by the people was that it would result in a disadvantage for smaller states. Madison’s notes reflect that, following his July 25 speech advocating appointment of the President by a group of electors chosen by the people, Gouverneur Morris supported a similar plan: “He [Morris] considered an election by the people as the best, by the Legislature as the worst, mode…” On July 19, Morris had explained why the President should not be dependent for his position on the will of Congress: “It is necessary then that the Executive Magistrate [President] 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 and nourish its love of power, and to stimulate it to oppression… The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people.”

On Thursday, July 26, after reviewing once again the various alternatives for electing the President, George Mason concluded that election by the national legislature was the best method, and that he be ineligible for re-election. At this point Benjamin Franklin stated that for an elected official to step down from office and return to the mass of the people was actually a promotion. “In free Governments the rulers are the servants, and the people their superiors & sovereigns. For the former therefore to return among the latter was not to degrade but to promote them.”

After repeatedly wrestling with the question of how to elect the President, the Convention on July 26 referred the question to the Committee of Detail. The Convention adjourned from July 26 until August 6, instructing the Committee of Detail to “prepare and report the Constitution.” This committee, having been formed on July 24, was assigned to draft a written constitution based on the 23 resolutions that had been approved through four weeks of vigorous debate. John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania labored over this task.

Using the Articles of Confederation, Virginia Plan, the debated resolutions, and the state constitutions, Randolph prepared a draft, which Wilson edited substantially. The Committee then made further improvements, resulting in the August 6 Report. These five men had a remarkable opportunity to apply their judgment to shape the Constitution. As they began, James Wilson reminded participants “We are providing a constitution for future generations, and not merely for the peculiar circumstances of the moment.”

How did this committee resolve the question of how to elect the President? In Article X of the Committee Report presented on August 6, they wrote, “…He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.” This early draft of the Constitution would be the subject of continuing debate and revision.

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

Two months into the Convention, the delegates could finally see a light at the end of the tunnel. Delegates had debated the resolutions presented by the delegation of Virginia, amended them, and debated them again. Before sending the revised amendments to a Committee of Detail that would create a rough draft of the Constitution, however, James Wilson and James Madison fought unsuccessfully to restore a constitutional provision they thought critical – a Council of Revision.

Council of Revision

Although the plan had been rejected twice, Wilson and Madison once again proposed that a Council of Revision be added to the Constitution. Consisting of the executive and judicial branch, the Council would be called upon to assess the constitutionality of legislation before becoming law. Madison explained that “experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex.” He believed that this tendency “was the real source of danger to the American Constitution.” Madison urged his colleagues to protect against this grave threat by allowing the judiciary to fortify the president in defending against the overreach of the legislature.

Despite Wilson and Madison’s passionate (and repeated) argument for the Council of Revision, a number of other delegates raised serious concerns. Elbridge Gerry argued that the Council would establish an “improper coalition” between the president and the judiciary. It would be a violation of the separation of powers. Luther Martin pointed out that not only would it be dangerous to mix the powers of the two branches, but that it would be inappropriate for judges to be involved in making laws. The judiciary’s role was to exposit the laws, not make them. On July 21^st, Wilson and Madison’s motion was narrowly defeated by a 4-3-2 vote.

Ratification

Finally, on July 23, the delegates began to discuss ratification of the new Constitution. Oliver Ellsworth and William Paterson motioned to refer the Constitution to the state legislatures for ratification.

The debate heated as several delegates voiced their disagreement. George Mason explained his belief that the Constitution should not be sent to the legislatures, but “to the people with whom all power remains that has not been given up in the Constitutions derived from them.” He feared that if the Constitution was only ratified by the state legislatures – and not the people – it would be subject to criticism and easily reversed. Madison echoed Mason’s concern, explaining “the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution.” For the Constitution to become the supreme law of the land – transcending all other laws and pacts – it must be ratified by the people.

Mason, Madison, and others in disagreement won out, and Ellsworth and Paterson’s motion was defeated 7-3. The delegates then voted 9-1 that, once approved by the Continental Congress, the Constitution would be sent to assemblies chosen by the people for ratification.

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

Philadelphia –

As the convention pressed into the late days of July, debate turned to the revised Virginia Plan’s resolutions on the Executive Branch.

The ninth resolution proposed that “a National Executive be instituted to consist of a single person, to be chosen by the National Legislature for the term of seven years…”. All delegations present agreed that the Executive ought to be composed of a single individual, but other issues raised deep differences between delegates. These differences were chiefly on key principles of republicanism and separation of powers.

Regarding the means of election, Gouverneur Morris of Pennsylvania vigorously opposed election by the national Legislature. Though one of the most aristocratic delegates by background and temperament, Morris feared that election by the Legislature would violate the principle of separation of powers, making the Executive a mere “creature” of that branch. He thought the judgment of the people as a whole would be far more likely to result in the election of a “man of distinguished character,” or of “continental reputation”.

But outside of his fellow Pennsylvanian James Wilson, Morris found little support for direct popular election for the Executive. Charles Pinckney of South Carolina voiced his opinion that it is better to have a few “active and designing men” make this choice. George Mason of Virginia likened Morris’ proposal to asking a blind man to name the colors before him.  The convention shot down Morris’ proposal and affirmed the original—though this solution would only be temporary.

Debate on issues of the term of and eligibility for office was also inconclusive. Momentarily postponing discussion of term length, delegates rejected a proposal to make the Executive ineligible for re-election. On the whole, delegates viewed re-election as an incentive that would drive the Executive to perform his proper duties. But the idea of imposing term limits on the Executive was dropped in favor of a proposal by Virginia’s James McClurg to strike the 7 years term and insert “during good behavior.”

Because the Executive was to be elected by the national Legislature, and because the proposal for making the Executive ineligible for re-election had been rejected, McClurg  – joined by Morris – thought that the only way to ensure a proper separation of powers was to allow the Executive to remain in office, effectively, for life. Madison concurred, drawing an analogy between the Judicial and Executive branches, both of which he believed required complete separation from the power of the Legislature to avoid being absorbed by it.

Others did not accept this logic. Roger Sherman thought the measure redundant. Re-election logically entails that the Executive is behaving properly—especially since the national legislative, the few “active and designing men,” are overseeing the selection process. Mason also bristled at the proposal of an Executive that would serve during good behavior, denouncing that such a policy would lead to the re-establishment of a hereditary monarchy in the new Republic within the lifetime of his children or grandchildren, if not his own. Surely no state, he lectured, “had so far revolted from Republican principles as to have the least bias” toward that proposal.

With the specter of monarchy having been raised, and with Mason having clearly challenged the commitment to republican principles of some of the convention’s leading members – including Madison and Morris – the delegations agreed unanimously to re-open discussion about the Executive. Luther Martin had moved to reconsider the eligibility requirement, in hopes of limiting the Executive to just one term of office. Gouverneur Morris took this opportunity, however, to rebut to Mason and make a case for extensive Executive power. “It has been a maxim in Political Science,” he explained, challenging Mason’s republican ideal, “that Republican Government is not adapted to a large extent of Country”. He reasoned that in a republican government – where the people are represented by the Legislative Branch – the Executive Branch is necessarily weak, and made a case that the Executive Branch “should be the guardian of the people, even of the lower classes, against Legislative tyranny.”

Morris continued to advocate that the Executive keep office during good behavior, but barring that proposed that the Executive be elected directly by the people. Madison (perhaps slightly chastened by Mason) concurred in recommending the Executive be selected by “the people at large,” downplaying his earlier suggestion that the Executive hold office during good behavior. Elbridge Gerry, who continued to display a knack for compromise, stated that both election by the national Legislature and by the people had disadvantages. He proposed a third way – a committee of electors chosen by state Executives. Oliver Ellsworth accepted the idea of electors, but suggested that state Legislatures select them. This compromise was easily approved, as was eligibility for re-election and – for a short time, at least – a six-year term.