Since delegates resolved, on July 16th, the most contentious issue of the convention, equality of state suffrage in the senate, they quickly hammered out over twenty other fundamental resolutions in the next week. The Connecticut Compromise smoothed the way toward fitting the remaining pieces of our Constitutional puzzle.
Among unresolved fundamental resolutions were judicial appointments. James Madison’s Virginia Plan of Government envisioned a bicameral congress, comprising a popularly elected house of representatives, and a senate appointed by the house of representatives. It also featured a judiciary powerful enough to check congress. Not only could the judiciary veto unconstitutional laws, it also made statutory policy decisions through a ‘Council of Revision’(8th Resolution). In this, a select number of supreme court justices, along with the chief executive, held a qualified veto over congressional bills and state laws. As odd as it sounds today, since congress nominated and appointed the chief executive, who had only the dim executive powers of the confederation, the added heft of another branch was a logical check in opposition to a popularly derived and powerful house and insular senate.
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. He 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.
The 9th Resolution of the VA Plan proposed both congressional nomination and appointment of federal judges. On July 21st, the convention revisited the 8th and 9th Resolutions with an eye on a senate, not appointed by the house and not represented in numbers proportional to population, but rather one appointed by the states which featured parity, equal voting rights among the states. Also, the chief executive in the VA Plan, who was beholden for his appointment and continuance in office to congress (7th Resolution), by mid-July accumulated some powers familiar to us, such as commander-in-chief duties over the military.
Ultimately, the convention saved the separation of executive and judicial powers when it voted down the Council of Revision 4-3-2, while a motion to grant the familiar executive veto subject to 2/3 congressional override passed without opposition. Having established the qualified veto in the executive branch, James Madison next motioned “That the Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by two-thirds of the second Branch of the Legislature.”
Delegates assumed the states in the new senate, like the states in the confederation congress, would each cast one vote, and that state legislatures could recall senators as they wished. Madison regarded the senate of the states as a repeat of the state agency that had doomed the confederation, and would thus prove fatal to the Union. With this in mind, and since the source of senators had changed from the VA Plan, Madison reasoned it was essential that the people saw a national officer, who had equal regard for all, to have a hand in the business of judicial appointments.
In something of a leap of faith, Madison assumed the chief executive would not be, per Resolution #7, a mere creature of congress. While the states would play a role in electing a president, it would not be through a sitting political body in which machinations, bribes, paybacks, and other considerations could overwhelm the general welfare.1
Governor Randolph agreed. He viewed the executive as a security for fit appointments. Rather than proper qualifications, is was cabal, caresses, and intrigues, that typically directed legislative appointments. The same embarrassments are certain if appointments are referred to either branch of the legislature or to any other authority administered by a number of individuals.
George Mason (VA) thought the president’s judicial appointment power too closely resembled the “dangerous prerogative” of British monarchs to appoint judges. He opposed the motion for the same reason our Declaration of Independence indicted King George III for making “Judges dependent on his Will alone, for the Tenure of their offices, and the amount and payment of their salaries.”
In response, Madison said he was not wedded to a two-thirds requirement to reject a nominee. He amended his motion to a simple majority rather than two-thirds. Still his motion “That the Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the second Branch of the Legislature,” failed to pass 6-3.
July 23rd. Today, delegates fitted several pieces of the Constitutional jigsaw puzzle. Among them was the shape of their senate of the states.
Proceedings opened with unanimous approval of the infant Article V: “Resolved that provision ought to be made for future amendments of the articles of Union, whensoever it shall seem necessary.”
After passing resolutions requiring oaths by state and federal officials in support of the new government, the convention voted to ask the states to submit the new Constitution to special assemblies of the sovereign people for ratification.
Gouverneur Morris (PA) and Rufus King (MA) moved to determine the number of senators from each state, with each senator voting per capita, and not as a state-bloc. After a brief back-and-forth, the convention quickly dismissed three senators per state. It adopted two senators and per capita voting, by a 9-1 vote.
Madison’s notes, as the convention wore on, were thin when compared to the early days of June. While we do not know very well the ‘why’ of per capita voting, we know in retrospect that it was part of the tremendous change between the confederation congress and the new senate. With per capita voting, the convention clearly did not regard senators as delegates, as ambassadors of their states. Being free to vote as directed by their judgement, they represented their states just as congressmen represented districts of the people. Being elected by shifting majorities in the state legislature, the two senators, voting per capita, better reflect the shifting political sentiments of the people. These reforms worked well along the way of preventing the debilitating problems inherent in the confederation congress.2
We should admire the clear thinking of our 1775 – 1787 forebears to recognize problems in government, and take the measures necessary to correct them. It is a quality in desperate short supply today.