Posts Tagged ‘Constitutional Convention’

The Defects of the Articles of Confederation, Part 4

Defects_of_the_Articles_of_Confederation_4  <== PDF version

Synopsis:  This is the fourth in a series on the weaknesses of the Articles of Confederation.  Congress was the only institution under the Articles, which led to some problems.

James Madison mentions in The Federalist Papers #38 that putting all government powers in the hands of a few is inherently risky.  He is referring to the fact that Congress was the only institution under the Articles of Confederation, a purely federal union organized under emergency conditions at the beginning of the Revolutionary War.  He writes:

Is it improper and unsafe to intermix the different powers of government in the same body of men?  Congress, a single body of men, are the sole depositary of all the federal powers.

The issues that arose specifically from this feature are due partly to the nature of deliberative legislative bodies, and partly to the concentration of such a wide variety of powers in a few hands. (The lack of adequate powers will be the subject of other editions of this series.)  When an issue of importance came up, there was no mechanism within the Congress to address it, other than to debate or send to a committee for consideration, whereupon some resolution would be passed or defeated.  It ended up being tasked with every type of problem, but was not ideally suited for those that required immediate attention or a definite determination.  It had a nominal judicial function to render certain types of findings in disputes between the states, but no regular judicial function.  It was also charged with managing the war effort and foreign relations, which sometimes require quick action.

But the larger risk was that all of these powers were lodged in one place.  It was common knowledge among the leaders in the founding generation, from their knowledge of history and the observations of the great political theorists, that the best structure for both efficiency and protection of liberties was an inherent division of power within the government.  Certain structures are inherently more efficient for certain objectives; but efficiency in government, carried too far, leads to a grasping for more powers to do more things efficiently; which in turn leads to a reduction in liberty as the government wields greater power.  The best solution was to divide the government into branches with narrowly-defined powers, and let the mutual ambitions of each cancel each other out.  While each branch has its legitimate sphere of power, the jealousy of the other branches keeps it within its proper limits.

One of the political theorists familiar to the founding generation was Charles de Montesquieu, who laid out his observations on divided government in his book The Spirit of Laws (1748).  In Book IX, he points out the one nation on earth in which political liberty was the main objective of its constitution, that is to say, England.  He proceeds to dissect the characteristics of the English system and how it promoted liberty in a general sense, writing in part:

“6.  Of the Constitution of England.  In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to things that depend on the civil law.

            By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have already been enacted.  By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions.  By the third, he punishes criminals, or determines the disputes that arise between individuals.  The latter we shall call the judiciary power, and the other simply the executive power of the state.

            The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety.  In order to have this liberty, it is requisite the government be constituted as one man need not be afraid of another.

            When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

            Again, there is no liberty, if the judiciary power be not separated from the legislative and executive.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with violence and oppression.

            There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

           As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole people.  But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.”

The desirability of a system of functional branches was so evident to the delegates to the federal convention, that the first set of resolutions on a new plan, offered by Edmund Randolph on 29 May1787, called for separate legislative, executive, and judicial departments.  On the same day (the fourth of the convention), Charles Pinckney put forward a draft of a constitution; it also called for the same three separate branches.  The next day, Nathaniel Gorham proposed, and his motion was carried, to postpone the discussion of Randolph’s first proposition about the general enlargement of the Articles of Confederation, and consider directly a general revision of the government, in these words [1]:

1.  That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation – namely, common defense, security of liberty, and general welfare.

2.  That no treaty of treaties among the whole or part of the states, as individual sovereignties, would be sufficient.

3.  That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.

The story of the Convention is how the delegates conducted the debate about the exact character of the government; whether it should be entirely national or entirely federal, or a mix; how the members thereof should be chosen, and what the duration of their offices would be; but from this point forward, there was little debate about the necessity and utility of a government with the three familiar branches, instead of Congress alone.

[1]  Jonathan Elliot, Debates on the Adoption of the Federal Constitution, in the Convention Held at Philadelphia in 1787, With a Diary of the Debates in the Congress of the Confederation, as Reported by James Madison, Philadelphia; J. B. Lippincott & Co., 1881, Vol. 5, pp. 126-134

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Regarding the “Three-Fifths Rule”

Regarding The “Three Fifths Rule” <== PDF version

Dear readers:

Due to its extreme length (61 pages), this posting is available only in .pdf format.  It is a complete recounting of the debates in Congress in 1776 and in 1783 as well as the debates in the Constitutional Convention of 1787 regarding how to establish representation in Congress.  As a result of several compromises, and under the assumption that representation should be tied to taxation, a rule in which slaves were counted as three-fifths of a free man was adopted.  As these debates show, the argument was always over revenue and the equitable distribution of representation and how it related to wealth, not to a moral estimate of the worth of black people vs. white people, as some activists would have us believe.

I have included the complete notes from Thomas Jefferson in the original 1776 debates, and all of James Madison’s notes, both from the debates in Congress in 1783 and in the Constitutional Convention of 1787.  This paper will arm you with the facts about the three-fifths provision.

Thanks,

EDD

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Why the House Originates Revenue Bills

Why_the_House_Originates_Revenue_Bills <== PDF version

Article 1, Section 7 of the U. S. Constitution states:

“All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”

It is instructive to recount the debate in the Constitutional Convention during which this provision was decided.  In early July of 1787, the delegates to the Convention were debating many aspects of how the proposed new government would function.  On 5 Jul 1787, a committee led by Mr. Gerry reported out its recommendations, one of which stated in part, “that all bills for raising or appropriating money … shall originate in the first branch of the legislature.”  The debate on this provision occurred the next day.  It turned out that the sentiments expressed by George Mason and Benjamin Franklin convinced the delegates to adopt this provision.  Here are the excerpts from James Madison’s notes regarding the arguments made by Mason and Franklin [1].  Keep in mind that the “first branch” referred to is the House of Representatives, the members of which are directly elected by the people, and the “second branch” is the Senate, the members of which were originally chosen by the state legislatures.  Hence the House represented the people; the Senate represented the states.

“Mr. Mason.  The consideration which weighed with the committee was, that the first branch would be the immediate representatives of the people; the second would not.  Should the latter have the power of giving away the people’s money, they might soon forget the source from whence they received it.  We might soon have an aristocracy.  He had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail.  He was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accommodation.

Dr. Franklin did not mean to go into a justification of the report; but as it had been asked what would be the use of restraining the second branch from meddling with money bills, he could not but remark, that it was always of importance that the people should know who had disposed of their money, and how it had been disposed of.  It was a maxim, that those who feel can best judge.  This end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people.  This was his inducement to concur in the report.  As to the danger or difficulty that might arise from a negative in the second branch, where the people would not be proportionally represented, it might easily be got over by declaring that there should be no negative; or, if that will not do, by declaring that there shall be no such branch at all.”

The delegates believed that the subject of revenue and taxation should be decided by those in the government who most directly represent the people, as they can be held to account more readily than those representing the states.  (However, the members of the Senate are now also elected by the people per the 17th Amendment, ratified in 1913.)  James Madison amplified this concept later in the Federalist #58:

“The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of the government.  They, in a word, hold the power of the purse — that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representative of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government.”

It would be novel indeed, if the modern House would refuse to fund something, especially since the national debt is so large.  It would be novel if the House only raised revenue that was necessary for the support of the government; taxes, deficits, and the total debt would likely be much smaller.  But such a great portion of the money raised now goes to spending that is not related to the function of the government per se.  The budgetary power does in fact cause Congress to dominate the government, which is as it should be.  Unfortunately, the revenue policies have in modern times caused the government to exert undue influence over industry and the people alike.

[1]  Jonathan Elliot, Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787; With a Diary of the Debates of the Congress of the Confederation; as reported by James Madison, Philadelphia: J. B. Lippincott & Co., 1881, Vol. 5, pp. 282-284

 

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