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17. Strengthening the Executive and Judiciary

The Virginia Plan Report gave Congress the power to “legislate in all cases to which the separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” This vague grant of the broadest of powers to the central government was now attacked by Rutledge and Butler of South Carolina who urged that it be returned to a committee for a specific enumeration—and therefore limitation—of powers. For such enumeration the states decided on a tie vote of 5-5, with Connecticut, Maryland, South Carolina, Georgia, and surprisingly Virginia voting for enumeration, and Massachusetts, Pennsylvania, Delaware, North Carolina, and surprisingly New Jersey holding out for unlimited power. Hence the re-committal lost; the pressure of New York could have broken the tie in favor of enumeration. Delaware’s Gunning Bedford, an ardent nationalist now that his state had achieved great representation in the Senate, moved to insert an even broader and wider grant of national powers “to legislate in all cases for the general interests of the Union.” Even Randolph warned that the general government would then violate laws and aggrandize power, but the convention approved the clause by 6-4.

Next came the clause empowering Congress to veto all state laws it believed were unconstitutional or in violation of national treaties. The struggle over this clause was basically minor, however; for while the fanatical James Madison, as usual, considered the veto power “essential,” Roger Sherman, Gouverneur Morris, and even Luther Martin preferred accepting national supremacy in the more softer guise of national judicial supremacy. Thus Sherman “thought it unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union,” and Morris pointed out that “a law that ought to be negatived will be set aside in the Judiciary departmt. and if that security should fail; may be repealed by a Nationl. law.” The congressional veto power was removed by a vote of 7-3 (only Massachusetts, Virginia, and North Carolina insisting on it), and Martin then moved and the convention accepted a clause that all constitutional congressional acts and treaties would have to be treated as “the supreme law” by the states and state courts.

Turning to the executive, the nationalists drove to strengthen still further the independent and dominant executive power. A limitation to a single term was replaced by allowing two terms; next, Dr. James McClurg of Virginia moved to replace seven years by a life term “during good behavior.” Gouverneur Morris was undoubtedly overjoyed at this proposal and Madison, favoring above all the idea of an independently powerful executive, countered George Mason’s perceptive and cogent fears of a national monarchy with a clever but empty paradox: a weak executive would lead to revolution and hence to monarchy. The proposal for a lifetime executive was defeated by the close vote of 4-6 (Voting for was Pennsylvania, New Jersey, Delaware, and Virginia).

The nationalists next turned to take the power to appoint the Supreme Court from the Senate (as it was represented from the Committee of the Whole) and force it into the executive. James Wilson and Gouverneur Morris urged this change but it was opposed by Luther Martin. The motion lost by 2-6 (Massachusetts and Pennsylvania voting yes, Georgia being absent). The nationalists were successful, however, in retaining the power of Congress to appoint inferior federal courts, despite the articulated attacks of Luther Martin and Pierce Butler; Randolph and George Mason led the defense. One clause of the committee report provided for a national guarantee to “a Republican Constitution & its existing laws” to each state. James Wilson explained that the clause was simply designed for the federal government’s suppressing of insurrections and rebellions within the states, a clause backed by Randolph and Mason, and changed by Wilson to guarantee “a Republican Form of Government” and to protect each state from “foreign and domestic Violence.” Luther Martin vainly upheld the liberal view; he “was for leaving the States to suppress Rebellions themselves.”

The convention was not finished with the executive, and through the remainder of July the ultra-nationalists, led by Madison, Wilson, and Gouverneur Morris, tried desperately to amend the Virginia Plan Report by freeing the executive power from subordination to Congress and allowing it to become an independent and separate power. Again the nationalists used democratic demagoguery to advance some form of popular election of the president, independently chosen by special electors, when their real aim was to erect a powerful executive remote from and uncontrolled by the mass of the people. Thus, the power pyramid of the nation would flow from the top—the president—down to the broad mass of the country. After discussion, the convention finally decided to leave the executive clause as it had been originally reprinted from committee: chosen for seven years and ineligible for a second term.

The nationalists also tried to change the committee plan by restoring the old idea of a joint executive-judicial veto of congressional measures. The idea was to add judicial and executive vetoes on the democratically elected legislatures. The oligarchical judge should not only be able to nullify unconstitutional laws, explained James Wilson and Madison, to his power should be added the right to veto any laws they deemed unwise. Madison professed no worry about excessive power in the executive or judiciary; only the legislature is to be feared. Thus, the elected legislature “was the real source of danger to the American Constitutions.” Nathaniel Gorham, Luther Martin, and Elbridge Gerry seriously objected that the judge’s rule would then confuse the authority and constitutionality of the legislature and judiciary and give the latter redoubled power. Madison, with his love of paradox, straightforwardly assured that a blending of executive and judiciary was necessary to really keep them separate. And he held up the ultras’ favorite model of Great Britain as the example to follow. The nationalist attempt, however, to give the judiciary a vote in the veto power was turned down by 3-4-2 (Yes: Connecticut, Maryland, Virginia; No: Massachusetts, Delaware, North Carolina, South Carolina; Divided: Pennsylvania, Georgia).

There was one more crucially important point to settle in this phase of the convention’s work: the procedure for ratification of the Constitution then in progress. The moderates and anti-nationalists made a desperate attempt to return to legality and submit the new Constitution 

to the state legislatures. Ellsworth, Gerry, and William Paterson led the fight for this motion. In his reply Gouverneur Morris made clear that the main reason for referring the Constitution to popular state conventions rather than the legislatures was to evade the unanimity requirement of the Articles. By transcending the Articles altogether, Morris and the nationalists were making the revolutionary proposal of launching the Constitution by less than unanimous agreement of the states. The motion for legality failed by 3-7, with only Connecticut, Delaware, and Maryland voting aye.

The basics of the Virginia Resolution had now been voted upon and the arch-nationalists had pushed through virtually every element of the reported Virginia Plan. Only the small-state victory on equal voting in the Senate, and the pro-states’ rights decision to have senators chosen by their respective state legislatures marred the record of the large-state nationalists’ triumph; their only defeats were on attempts to make their Virginia Plan even more centralist and powerful. It is true that the nationalists’ cherished veto of state laws had been eliminated, but its substance was retained by enlarging on the rule of federal laws and the federal judiciary.10

 

  • 10. [Editor’s footnote] Ibid., pp. 27–29, 33, 47–48, 74, 133.
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