(The Resolutions cited today were those of the Randolph/Virginia Plan submitted by Governor Edmund Randolph of Virginia on May 29th. See http://www.freerepublic.com/focus/f-bloggers/2726699/posts)
In Committee of the Whole.
Charles Pinckney (SC) motioned to ask delegates, “Shall the blank for the number of Executives be filled with a single person?"
James Wilson (PA) reminded the convention that all of the states had a single governor. He predicted animosity between multiple execs that would poison relations with the other branches, administration, the states and people.
Roger Sherman (CN) asked if Mr. Wilson intended to have a Council for the Executive as the Governors and King of England had. Answer: No.
A single Executive it would be, by a 7-3 vote.
Resolution Eight was next. “That the Executive and a convenient number of the National Judiciary, ought to compose a Council of Revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ----- of the members of each branch.”
Elbridge Gerry brought up Judicial Review, the power to toss unconstitutional laws. That alone would provide a sufficient check against encroachments upon the Judicial Branch. It was foreign to a judge’s nature to get involved with public policy.
(Before I read these debates, I was skeptical of the power of Judicial Review as being somehow inherent within the Judicial Branch. No more. It will come up again at the Convention, without making any fuss at all. From these debates, I am convinced that what most Freepers regard as an unconstitutional power grab in Marbury v. Madison by John Marshall was no such thing.)
Rufus King (MA) disliked the idea of deciding the merits of a case in which the court had a hand in making the underlying law. (What would Bull Kagan think?) (Sorry.)
(Council of Revision. Debate over a Council of Revision may be a surprise to most Freepers. The nub of the question was, “Should the Judiciary and Executive have joint veto power over bills passed by Congress before they become law?” Elbridge Gerry didn’t think so, because the judiciary may have subsequent duty to determine a law’s Constitutionality. To negate a bill outside of court would involve the judiciary in political decisions.)
(Sidebar. One of my references to these posts was Miracle at Philadelphia by C. D. Bowen, 1966. According to her, Elbridge Gerry told fellow delegates he did not wish to see the Executive “covered by the sanction and seduced by the sophistry of the judges.” He reflected a widespread prejudice. Among the fifty-five delegates, thirty-four were lawyers and eight were judges. She wondered if they frowned at his dig. The fact was that judges were not held in high regard at the time. Shays Rebellion involved shutting down foreclosure proceedings and courthouses. In the continuing deep recession after the war, judges were associated with throwing honest men, surviving soldiers into debtor prisons for not paying taxes in specie when all they had was worthless State issued paper money. Also, lawyers had made themselves unpopular since the peace of 1783 by defending former Loyalists in court who wished to retrieve confiscated property. Alexander Hamilton, Robert Yates were among them. James Wilson’s home was damaged by a mob, due in part to his defense of Tory property.)
Mr. Gerry motioned to postpone the debate and discuss granting the Executive sole power to negate bills.)
The question of a Council of Revision was postponed, to take up the question of a veto by the Executive.
James Wilson (PA) suspected a powerful legislature will roll the executive. He supported an absolute negative, with no override by the legislature, jointly by a combined executive and judiciary council.
Alexander Hamilton (NY) favored an absolute Executive Veto, with no legislative override. The King of England had not used his veto power since the revolution.
(We should remember the admiration our Framers had for the British system. While it would not do for Americans, the powers of Parliament and King hovered over the delegates. After the Convention, Luther Martin (MD) remarked, “We were eternally troubled with arguments and precedents from the British government.”)
Elbridge Gerry (MA) disagreed, saw no need for an absolute veto.
Dr. Benjamin Franklin (PA) disagreed with Wilson and Hamilton. He related how the absolute veto in PA fostered incredible public corruption, even at the expense of scalped frontier settlers.
Roger Sherman (CN) disapproved of the executive veto. Why should a single man be empowered to absolutely overturn the will of the whole?
James Madison (VA) supported a legislative override. It was against the temper of Americans to grant monarchal powers to the Executive.
Fellow Pennsylvanian James Wilson reminded Dr. Franklin that the Executive back then was not elected by the people.
Pierce Butler (SC) spoke of Executives with tyrannical intentions.
Gunning Bedford (DE) preferred enumerated powers for the legislature and no veto at all over their bills.
George Mason (VA) agreed with Franklin on the probability of corruption associated with a single executive. Bribery and influence peddling are certain to follow. He went so far as to be certain that the convention would create an elective monarchy, which is more dangerous than a hereditary one. He cautioned delegates to propose a system the people will accept.
Dr. Benjamin Franklin (PA) gave another history lesson. We were apparently doomed to a Monarch. (Obama is certainly the Executive closest to Monarchial reaches of power, but without a nobility to keep him in check.)
By a vote, the Executive would not have an absolute veto.
Pierce Butler (SC) asked delegates to allow the Executive to suspend laws for a specific period of time. No way, all states voted against.
The motion for a legislative 2/3 override of a veto passed.
Judicial veto of Congressional bills was defeated. Connecticut and Maryland voted for it.
James Wilson (PA) & James Madison (VA) attempted to reinsert wording similar to that rejected regarding Judicial veto. It would be considered tomorrow.
In what may have occurred in only a few minutes and at the end of the day, the convention accepted Randolph’s Resolution #9 to establish a National Judiciary.
Federal Convention Ping!
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