After a Sunday of, following debate on the Executive on June 2, 1787, the Convention resumes its debates with the Executive on June 4, 1787. June 2, resolved very little on the Executive, and little of what was agreed to will actually remain through the final draft, mainly the ability to impeach the President, while a seven year term would eventually be changed.
Singular or Plural Executive Decided
Charles Pinckney (South Carolina) resumes discussion on whether the Executive should be singular or plural, by moving,
“Shall the Blank for the Number of the Executive be filled with a single person”.
This motion is seconded by James Wilson (Pennsylvania) and noted it was opposed by Edmund Randolph (Virginia), since no arguments to this point in the convention had convinced him a singular was best. James Wilson observed the objections were not leveled so much at the measure itself, as much as at its unpopularity. On examination he could see no evidence of the apathy of the people, on the contrary was persuaded it did not exist. All know a single magistrate is not a king. One fact had great weight; ALL Thirteen States had a single magistrate. The idea of three heads has taken place in none, and Wilson saw tranquility in one head which would not be obnoxious to the people, they were used to the single executive. Three may divide, two may not agree resulting in Anarchy and confusion1, and he foresaw uncontrolled and continued and violent animosities, which would interrupt the Administration, but diffuse their poison through the other branches of Government, through the States and the People. Roger Sherman (Connecticut) felt the matter is of great importance and ought be well considered be determined. He noted a single magistrate in each state. He also noted each State Magistrate had a council and favored one.
William Williamson (Connecticut) asked James Wilson whether he meant to annex a council? Wilson does not mean to have no council, which after serves to cover rather than prevent mal-practice. Elbridge Gerry (Connecticut) was at a loss for three heads. Inconvenient, particularly in military matters, a General with three heads.
On the question of a Single Head Magistrate (Executive): Agreed to; Yea =7 (MA, CT, PA, VA, NC, SC, GA), Nay=3 (NY, DE, MD)
After three different days of discussing whether to have a singular or plural executive, the Convention finally agreed to a single executive, what will become the President. As pointed out, each state had only a single executive, so it is not surprising that the Convention followed suit with what has to this point proved to be a successful trial run for the concept.
Council of Revision, beginning of Judicial Review and the Veto.
After the Convention decided to make the Executive one person, the Committee of the Whole moved onto consider the next part of the Virginia Plan, 1st Clause of the 8th Resolution:
“To a council of Revision” .
Elbridge Gerry (Massachusetts) Doubts judiciary ought to form part of it, as they will have a sufficient check against encroachment on their own department, by their expression of laws which involved a power of deciding on their constitutionality. Noted some States courts set aside laws as unconstitutional. Gerry than moved to postpone the clause in order to propose, “That the National Executive shall have a right to negative any legislative act, which shall not be afterwards passed by [blank] parts of each branch of the National Legislature”.
Rufus King (Massachusetts) Seconded the motion believing the Executive should have a full negative1, observing judges ought to be able to expound the law, as it should come before them, free from the bias of having participated in its formation. James Wilson (Pennsylvania) Thinks neither the original proposition nor the amendment go far enough. If the Three Branches are to be distinct and independent, the Executive ought to have absolute negative, without it could sink the Executive into non-existence. He was for varying the proposition in such manner for Executive and Judicial jointly negative.
The Proposition, “That the National Executive shall have a right to negative any legislative act, which shall not be afterwards passed by [blank] parts of each branch of the National Legislature” Was agreed to 6-4: Yea (MA, NY, PA, NC, SC, GA), Nay (CT, DE, MD, VA)
With Elbridge Gerry’s Proposition being before the committee, James Wilson and Alexander Hamilton (New York)move the last part
“Which shall not be afterwards passed by [Blanks] parts of each branch of the National Legislature”, be struck, so to give the Executive an Absolute Negative.
There was no danger they thought of such a power being too much exercised. Hamilton noted Great Britain King had not exercised it since the Revolution. Gerry saw no necessity for so great of control over legislature.
Pierce Butler (South Carolina) opposed the idea of an absolute Executive negative, it would make the Executive a King2.
Benjamin Franklin (Pennsylvania) noted this power in Pennsylvania was used to extort money, even at the cost of the people’s lives. Franklin was contending that the executive of the State would require a form of kick back or other personal or political favors in order to sign legislation, that the power was to great to leave in the hands of one person with no means to check it. Roger Sherman (Connecticut) was against enabling any one move to stop the will of the whole. No one man could be above the wisdom of the rest. While James Madison (Virginia) supposed proper proportion of each branch be required overrule the Executives objections. [This is the basic premise of what will become the Executive Veto and the ability of the Legislature to override it]. Madison also felt it would have difficulty of the executive, venturing on the exercise, preferring revision only1.
James Wilson believed the power would be seldom used. He also stated Franklin’s example in Pennsylvania would not apply with the Executive being appointed by the People. Overriding the Executive in peace times is okay, but there might be temptations times in which animosities may run high between the executive and legislative branches in which the executive ought to be able to defend it self.
Pierce Butler had been in favor of a single magistrate, and could have entertained the idea of a complete negative, but this time was opposed to not only an Executive Negative but also a council of revision or revisional power. He noted an ever increasing power of executive in other countries, He cautioned to think if we had nothing to apprehend. Butler was in favor of well defined Legislative powers so as to not become extreme or subversive1.
Gunning Bedford Jr. (Delaware) also opposed to every check on the legislature, even a council of revision. He believed with defined boundaries would be sufficient. George Mason (Virginia) followed by making this proclamation, “We are not constituting a British Government, but a more dangerous Monarchy, - an elective one”. “Will it not be enough for the executive to suspend laws until revisited, or overridden by larger majority”. He would never give in to a single magistrate, still preferring a plural executive.
Benjamin Franklin noted Pierce Butler’s mention of the Netherlands a couple days prior [June 2, 1787]. He elaborated the stages from appointment, to hereditary to civil war for Monarchy of those in power. Noted Officers of profit should be at the executive disposal and appointed. The executive will always be increasing here as it is elsewhere until it ends in Monarchy.
On the Question of Striking “Which shall not be afterwards passed by [Blanks] parts of each branch of the National Legislature” 10-0 Nay
Pierce Butler moved
“Resolved, that the National Executive have power to suspend any legislative act for the term of [blank]”.
Seconded by Benjamin Franklin.
Elbridge Gerry it may end up doing the same as an absolute negative with out answering to checking unjust or unwise acts.
On Question of Resolved, that the National Executive have power to suspend any legislative act for the term of [blank], 10-0 Nay
On the Question for Two-Thirds majority of each House to override the Provisionary Check : Agreed to and Passed Sub Silento [Under Silence, overruling the previous precedent,]
On the Question to give the Executive alone, without Judiciary the revisionary control on laws unless overruled by two-thirds vote: Agreed to 8-2. Yea-8 (MA, NY, PA, DE, VA, NC, SC, GA ), Nay-2 (CT, MD)
The two preceding provision sets up the basic framework for what will be the Executive Veto and Veto Override by the Legislature, as will be seen in Article I of the Constitution.
James Wilson moved, and seconded by James Madison,
to add after National Executive, “and a convenient number of the National Judiciary”.
This was objected to by Alexander Hamilton and John Dickinson (Delaware), these are spate departments [branches]. Judges are to interpret law, and should have no part in making them postponed until the next day2.
The Convention considered the Ninth Resolution,
“Resolved, that a National Judiciary be established”, Agreed to nem con.
Following this it was moved (by unknown) to change to add, “to consist of One Supreme Court and one or more inferior Tribunals”. Agreed to nem con.
The Convention than adjourned until June 5, 1787.
Days Summary
The First order of business for the Convention this day was to agree to a single Executive for what will become the President of the United States.
After agreeing to a single Executive, the convention than moved onto considering a Council of Revision, for the purpose of examining legislative acts to ensure they were valid according to the Constitution. This discussion though was not resolved this day, did end up the basic concept of the Executive Veto and Legislative override by two-thirds of each house.
The Convention did not agree to giving the Executive the ability to Negative state laws by a unanimous vote, and also by unanimous vote did not agree to giving the Executive to also negative National Legislative acts. This later provision led to the Veto and override concept.
The Council of Revision will be continued to be debated with the motion on the floor but postponed about including the judiciary into the mechanism of it. The council of revision is different than a veto, though the veto came about from the debates of the Council of revision. The Council of Revision is proposed to be a means of absolute negative of legislative acts, based on their merits but also if they are legitimate (Constitutional). Today we can see how this council is starting to break into to the two distinct parts, with the adoption of the Veto and Override, and also by Rufus King’s assertion that the ruling on what law is is the place of the Judges.
The Day finished with establish a Judiciary consisting of a Supreme Court and inferior courts, a concept that will carry through the Convention, though the details will like most things, will change over the course.
All Convention debate sources are from James Madison’s Notes on the Federal Convention of 1787 unless otherwise indicated.
1: Robert Yates (Notes on the Convention of 1787)
2: Rufus King (Notes on the Convention of 1787)
No comments :
Post a Comment