Skip to comments.Journal of the Federal Convention August 15th 1787
Posted on 08/15/2011 3:03:37 AM PDT by Jacquerie
Article VI Sections 11-13. Money Bills Part III. Treaties. Council of Revision. Absolute v. Conditional Executive Veto.
Art: VI. Sect. 11. [FN1], [FN2] Agreed to nem. con.
Art: VI Sect. 12. [FN1], [FN3] taken up.
Mr. STRONG moved to amend the article so as to read-"Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the Govt. which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases"
Col. MASON, 2ds. the motion. He was extremely earnest to take this power from the Senate, who he said could already sell the whole Country by means of Treaties.
Mr. GHORUM urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them.
Mr. GOVERNR. MORRIS opposed it as unnecessary and inconvenient.
Mr. WILLIAMSON. some think this restriction on the Senate essential to liberty, others think it of no importance. Why should not the former be indulged. he was for an efficient and stable Govt. but many would not strengthen the Senate if not restricted in the case of money bills. The friends of the Senate would therefore lose more than they would gain by refusing to gratify the other side. He moved to postpone the subject till the powers of the Senate should be gone over.
Mr. RUTLIDGE 2ds. the motion.
Mr. MERCER should hereafter be agst. returning to a reconsideration of this section. He contended, (alluding to Mr. Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that Treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of Treaties in Great Britain; particularly the late Treaty of Commerce with France.
Col. MASON. did not say that a Treaty would repeal a law; but that the Senate by means of treaty [FN4] might alienate territory &c, without legislative sanction. The cessions of the British Islands in [FN5] W. Indies by Treaty alone were an example. If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.
On [FN5] question for postponing Sec: 12. it passed in the affirmative.
N. H. ay. Mas. ay Ct. no. N. J. no Pena. no. Del. no Maryd. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. - [FN6]
Mr. MADISON moved that all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law- [FN7]
See the motion at large in the Journal of this date, page 253, & insert it here." [FN8]
["Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law."]
Mr. WILSON seconds the motion.
Mr. PINKNEY opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.
Mr. MERCER heartily approved the motion. It is an axiom that the Judiciary ought to be separate from the Legislative: but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. He disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.
Mr. GERRY. This motion comes to the same thing with what had been already negatived.
[FN10]Question on the motion of Mr. Madison.
N. H. no. Mass. no. Ct. no. N. J. no. Pa. no. Del. ay. Maryd. ay. Virga. ay. N. C. no. S. C. no. Geo. no. [FN11]
Mr. Govr. MORRIS regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative Assemblies. He suggested the idea of requiring three fourths of each house to repeal laws where the President should not concur. He had no great reliance on the revisionary power as the Executive was now to be constituted [elected by the [FN12] Congress]. The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the National legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring 3/4 to repeal would, though not a compleat remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities.
Mr. DICKENSON was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. The Justiciary of Arragon he observed became by degrees, the lawgiver.
Mr. Govr. MORRIS, suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Constitution was law. A controul over the legislature might have its inconveniences. But view the danger on the other side. The most virtuous Citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded agst. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylva. points out the many invasions of the legislative department on the Executive numerous as the latter [FN13] is, within the short term of seven years, and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments agst. it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome where the Aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative Authority to usurp on the Executive and wished the section to be postponed, in order to consider of some more effectual check than requiring 2/3 only to overrule the negative of the Executive.
Mr. SHERMAN. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties. We have gone far enough in forming the negative as it now stands.
Mr. CARROL. when the negative to be overruled by 2/3 only was agreed to, the quorum was not fixed. He remarked that as a majority was now to be the quorum, 17. in the larger, and 8 in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controuling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.
Mr. GHORUM saw no end to these difficulties and postponements. Some could not agree to the form of Government before the powers were defined. Others could not agree to the powers till it was seen how the Government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixt in the U. States.
Mr. WILSON; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Govt. from the legislature swallowing up all the other powers. He remarked that the prejudices agst. the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, King and Tyrant, were naturally associated in the minds of people; not legislature and tyranny. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tryanny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded agst. the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department.
Mr. RUTLIDGE was strenuous agst. postponing; and complained much of the tediousness of the proceedings.
Mr. ELSEWORTH held the same language. We grow more & more skeptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.
The question for postponement passed in the negative: Del: & Maryd. only being in the affirmative.
s Mr. WILLIAMSON moved to change " 2/3 of each House" into " 3/4 as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the Presidt. alone, to admitting the Judges into the business of legislation.
Mr. WILSON 2ds. the motion; referring to and repeating the ideas of Mr. Carroll.
On this motion for 3/4 . instead of two thirds; it passed in the affirmative
N. H. no. Mas. no. Ct. ay. N. J. no. Pena. divd. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. no. [FN15]
Mr. MADISON, observing that if the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes &c, proposed that or resolve" should be added after "bill" in the beginning of sect 13. with an exception as to votes of adjournment &c.-after a short and rather confused conversation on the subject, the question was put & rejected, the States [FN16] being as follows,
N. H. no. Mas. ay. Ct. no. N. J. no. Pena. no. Del. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo. no. [FN17]
"Ten [FN18] days (Sundays excepted)" instead of "seven" were allowed to the President for returning bills with his objections N. H. & Mas: only voting agst. it.
The 13 Sect: of art. VI as amended was then agreed to.
FN1 See ante.
FN2 The word "was" is here inserted in the transcript.
FN3 The words "was then" are here inserted in the transcript.
FN4 The transcript uses the word "treaty" in the plural.
FN5 The word "the" is here inserted in the transcript.
FN6 In the transcript the vote reads: "New Hampshire, Massachusetts, Virginia, North Carolina, South Carolina, Georgia, aye-6; Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, no-5."
FN7 This paragraph is stricken out in the transcript.
FN8 Madison's direction concerning the motion is omitted in the transcript and the following sentence is inserted: "Mr. Madison moved the following amendment of Article 6, Section 13." [FN9]
FN9 See ante.
FN10 The words "On the" are here inserted in the transcript.
FN11 In the transcript the vote reads: "Delaware, Maryland, Virginia, aye-3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, North Carolina, South Carolina, Georgia, no-8."
FN12 The word "the" is omitted in the transcript.
FN13 The Executive consists at this time [FN14] of abt. 20 members.
FN14 The phrase "consisted at that time" is substituted in the transcript for "consists at this time."
FN15 In the transcript the vote reads: "Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye-6; New Hampshire, Massachusetts, New Jersey, Georgia, no-4; Pennsylvania, divided."
FN16 The word "votes" is substituted in the transcript for "States."
FN17 In the transcript the vote reads: "Massachusetts, Delaware, North Carolina, aye-3; New Hampshire, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no-8."
FN18 The transcript does not italicize the word "Ten."
Article VI Section 12, Each House shall possess the right of originating bills, except in the cases beforementioned, was taken up.
Caleb Strong (MA) motioned to reword Section 12 as, "Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the Govt. which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases"
George Mason (VA) seconded. This denied a power to the Senate, which could already sell the country away by means of Treaties.
Nathaniel Gorham (MA) urged passage. He did not trust the Senate either.
Governor Morris opposed it as unnecessary.
Hugh Williamson (NC) saw no reason to not indulge those who would restrict the Senate from originating Money Bills. He motioned and Mr. Randolph seconded to postpone consideration of the Section until Senate powers could be determined.
John Mercer (MD) did not wish to return to this Section once it was left. He then wandered off topic a bit to comment on Mr. Masons position regarding treaties. Mr. Mercer would have them negotiated by the Executive and ratified by Congress.
George Mason (VA) elaborated his comments; no treaty could repeal a law. (At this point the treaty power was entirely within the Senate, under Article IX, which had not yet been debated.) He was concerned for instance, that the Senate could dispossess the Southwest territories to Spain. (The Northern/Eastern States could dominate the Senate, and could give the territory away in the interest of restraining southern expansion. This fear would resurface in VA during the ratification debates.)
Article VI Section 12 was narrowly postponed 6-5.
(Some subsequent notes from Mr. Madison are apparently missing.)
James Madison (VA) offered an amendment to Article VI Section 13 which brought back the Council of Revision (Combined Judicial and Executive Veto) plus an extra supermajority of ¾ in each House to override both Judicial and Executive vetoes.
James Wilson (PA) seconded.
Charles Pinckney (SC) thoroughly opposed the Judicial Veto as prejudicial to their traditional duties.
John Mercer (MD) heartily approved of Judicial Veto. While he supported the veto to combat legislative usurpation and oppression, he opposed the doctrine of Judges as expositors of the Constitutionality of laws.
Elbridge Gerry (MA) reminded the Convention that the Council of Revision had already been discussed and rejected.
Mr. Madisons amendment failed 8-3.
Governeur Morris (PA) wished for some sort of extra check on the Congress. Since the President was to be elected by Congress, he doubted he would often oppose his electors. Mr. Morris was apprehensive of a Congress that would go the way of some State Legislatures regarding paper money and debt forgiveness. He advocated a ¾ majority in both Houses to override the Executive veto.
John Dickinson (DE) agreed with John Mercer (MD) that Judges should not be able to set aside law via Judicial Review. (I didnt find anything on a search of the Judiciary of Aragon)
Governeur Morris (PA) supported an absolute Executive veto. He had misgivings denying Judicial Review when the court was faced with Constitutional violations. An absolute Executive veto would have its inconveniences but would outweigh the negatives of something less. Mr. Morris noticed that even virtuous citizens are prone at times to get caught up in legislative mobs and vote in ways they later were ashamed of. After a lengthy lesson on abusive legislative assemblies through history, he motioned to postpone the question until something better than a mere 2/3 override could be devised.
Roger Sherman (CN) could not envision a single Executive with authority to veto the decision of so many Representative and Senators. He disapproved of getting the Judiciary involved in politics and parties.
Daniel Carroll (MD) also wished to postpone the question until the duties and powers of the Executive were further developed.
Nathaniel Gorham (MA) asked for an end to the powers before form, and form before powers arguments for postponements and reconsiderations.
James Wilson (PA) feared the new Congress would swallow up all powers. He thought confidence in legislatures to be a misapplication of the British system where Parliament was seen as the palladium of liberty and Kings were nearly synonymous with Tyrants. We did not associate Legislatures with Tyranny, but should be careful, because a weak Executive would lead to tyranny we abhor. He offered an example from British history. Our system should offer more in the way of self defense mechanisms to the Executive and Judicial branches.
John Rutlidge (SC) also complained of the tedious proceedings and was against postponement.
Judge Oliver Ellsworth (CN) agreed. Get on with it.
The question to postpone failed, 9-2.
Hugh Williamson (NC) motioned to change two thirds to three fourths. He would keep Judges out of the business of legislating.
James Wilson (PA) seconded
The motion to substitute three fourths for two thirds passed, 6-4-1.
James Madison (VA) was concerned the Executive veto could be gotten around by Congress by not using the word, bill. He moved to amend Section 13, No Bill or resolve of the Senate and House of representatives shall become a Law, or have force until it shall have been presented to the President of the United States for his revision.
Mr. Madisons motion was rejected, 8-3.
Ten days replaced seven as time for the President to return bills.
Article VI Section 13 as amended, passed with a vote not recorded by Mr. Madison.
We tend to think the Framers walked into the Convention with a fully developed concept of separation of powers. Early debate over the Council of Revision illustrated otherwise. While it was assumed Americans would never stand for a President with Kingly attributes, delegates were concerned the President would be rolled by headstrong Congresses. The short experience of the thirteen States in which weak Executives could exert little pushback against populist Legislatures prompted Governor Randolph and the VA delegation to give the Executive a little back up support from the Supreme Court. Fortunately, the majority came to realize it would be improper to structurally involve the Judiciary in political decisions.
Notice the various strengths of Executive vetoes. From absolute to conditional on two thirds or three fourths Congressional overrides, the delegates had to decide to what extent this new Executive could defeat majoritarian decisions of the popularly elected House and State appointed Senate. Heady stuff.
Good Morning and Thank You!
I agree with your Good Morning,and the “t’anks” due. I notice the nettle Mr.Mercer was politely responded to by Col.Mason
Oh to have Mr.Mercer as subordinate in a Military unit -I’d have him drummed from the service as true of Lieutt.Enslin of Colo. Malcoms Regiment.
G’Day to all!
Very much so. Thanks for your work. History/Education BUMP!