A People's History of the Supreme Court
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One reason that Madison avoided taking strong positions on these questions in early debate was that he really had none. His wide reading and diligent research had convinced him of the necessity for a strong national government, with three branches of separate but equal powers. Beyond this, he was open to persuasion from other delegates with experience in executive and judicial positions. Seven delegates had served as chief executives of their states; several others held state judicial offices. Some of these delegates expressed strong opinions on the questions that Madison left open in his early remarks; others shifted between one position and another as various proposals came up for debate and decision. In the end, Madison’s “Federalist” vision of a strong national government with three branches of extensive and equal powers prevailed over the “localist” view that wished to retain state sovereignty in a slightly restructured Confederation, with limited powers for Congress and no national executive or judicial officers.
The convention first took up the question of executive power on June 1, in an atmosphere of gravity and anticipation. The session opened with a motion by James Wilson of Pennsylvania that “the executive consist of a single person.” Madison recorded in his Notes that a “considerable pause” followed the motion, as delegates hesitated to commit themselves on this issue. Benjamin Franklin, who had been assisted to his special chair to attend a session he considered vital, finally broke the silence. Franklin ʻʻobserved that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it” before they voted. John Rutledge of South Carolina obliged the elder statesman. He spoke of the ʻʻshyness of gentlemen” on this question, suggesting that delegates who, ”having frankly disclosed their opinions“ on choosing the executive, might feel precluded from ”afterwards changing them.“ Rutledge supported ”vesting the executive power in a single person, though he was not for giving him the power of war and peace.”
During the debate that followed Rutledge’s speech, Edmund Randolph of Virginia—himself the chief executive of a large and powerful state—chafed in his seat and finally jumped to his feet. Randolph ʻʻstrenuously opposed a unity in the executive magistracy,” Madison reported. ”He regarded it as the fetus of monarchy.ʼʼRandolph “could not see why the great requisites for the executive department, vigor, despatch, and responsibility, could not be found in three men, as well as in one man.” James Wilson answered that ʻunity in the executive instead of being the fetus of monarchy would be the best safeguard against tyranny.ʼʼ
With the delegates unable to agree on how many men should occupy the ʻʻexecutive magistracy,” debate shifted to the method of election. Again, divisions on this issue reflected attitudes toward ”the people“ as participants in the political process. During the session on June 9, Elbridgc Gerry of Massachusetts moved that the state governors select the national executive, with each state having the same number of votes as it had senators. He reasoned that governors “would be most likely to select the fittest menʼʼ for the post, whether one or more. Not a single delegate rose to support Gerry’s motion, and not a single state—including his own—voted for his motion.
Over the weeks that followed this first inconclusive debate and vote, the question of choosing the national executive came up in several sessions, but without any resolution. Delegates spent most of their time making speeches and motions about the legislative branch ; deciding who made the national laws concerned them more than who executed them. The era of the “imperial presidency” would not begin for another century and a half, and the Framers of 1787 worried less about presidential power—or abuse of power—than about congressional power and relations between the states and federal government.
One remarkable aspect of the American political system is that most citizens believe they can vote directly for officials at all levels of government. From city councils to Congress, voters cast their ballots for the candidate they prefer. But many are unaware they cannot vote directly for the president and vice president of the United States. Instead, they vote ndirectly for candidates to these high offices through ʻʻelectorsʼʼ whose names often do not appear on the ballot and who are usually obscure party loyalists. For two centuries, proposals to amend the Constitution and provide for direct election of the president and vice president have failed to change this anachronistic system.
During the Philadelphia convention, a few delegates did urge that “the peopleʼʼbe allowed to elect the president directly. On July 17, after the states voted without dissent that the ”national executive consist of a single person,“ the delegates took up the proposal in the Virginia Plan that the executive ”be chosen by the national legislature.“ Gouverneur Morris of Pennsylvania spoke ”pointedlyʼʼagainst this motion, Madison noted in recording his speech. “He ought to be elected by the people at large,” Morris said of the president. “If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.ʼʼ Madison did not record in his notes whether heads turned in the chamber toward General Washington, seated before them in the presiding chair. Virtually all the delegates assumed that Washington would be elected by acclamation as the first ʻʻnational executive” by whatever method they chose; it was the question of who would follow Washington that led most delegates to question the proposal for direct election.
Morris outlined his objections to the Virginia Plan. “If the legislature elect,” he argued, “it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Roger Sherman of Connecticut voiced the concern of the smaller states on this question. He countered Morris that “the people at large . . . will never be sufficiently informed of characters“ of the candidates. ʻʻThey will generally vote for some man in their own state, and the largest state will have the best chance for the appointment.ʼʼ George Mason of Virginia, who fervently supported the rights of “the people” on most issues, and who represented both the largest state in delegates and the home of George Washington, surprisingly sided with Sherman. ”He conceived it would be as unnatural, ʼʼ Madison recorded, “to refer the choice of a proper character for Chief Magistrate to the people, as it would to refer a trial of colors to a blind man. The extent of the country render in impossible that people can have the requisite capacity to judge of the respective pretensions of the candidates.” When the delegates voted, only Morris’s home state of Pennsylvania supported his motion for “an election by the people” of the president.
Debate over varying proposals for the election of the president—although that title for the chief executive was not widely used until the convention neared its end—dragged on throughout the summer, with no agreement in sight. On July 19, Gouverneur Morris restated his position that “the executive magistrate should be the guardian of the people, even of the lower classes, against legislative tyranny, against the great and the wealthy who in the course of things will necessarily compose the legislative body.” His long and eloquent speech fell on deaf ears. Even Madison, who supported direct election of the president in principle, yielded to sentiment against it and observed that electors chosen by state legislatures ”seemed on the whole to be liable to fewest objections.”
Frustration on this issue mounted to such levels that George Mason, speaking on July 26, listed seven different proposals that had been moved and rejected, from direct election by the people to choosing a president by lottery. Mason opposed direct election because a choice which should be made ʻʻby those who know most of eminent characters“ should not be made ʻʻby those who know least.” About the lottery proposal, which was totally facetious, Mason wryly remarked that “the tickets do not appear to be in much demand.”
Not until September did the delegates take any real steps toward settling this vexing issue. Opinions seemed to be moving toward proposals for a single presidential
term of seven years, with the president elected by Congress, and with a provision for impeachement. But the convention refused to make a decision, and the weary delegates finally dumped the issue on a newly created Committee on Postponed Matters. When that group reported on September 4, it laid before the convention a proposal that became—with minor changes—the text of Article II of the Constitution. The country would not only have a president, elected for a term of four years, but a vice president as well, chosen by electors who were themselves chosen by the state legislatures. The election plan was complex, giving both houses of Congress a role in choosing the president in case a majority of state electors could not agree; the vice president would be the man with the second-largest number of electoral votes.
By September 12, after dozens of motions to amend the committee’s report had been debated and voted up or down, the convention finally adopted a detailed plan for election of the “national executive” that Madison had proposed in vague outline on May 29. The president was now designated as ʻʻcommander in chief” of the armed forces, was empowered to “make treaties” with the concurrence of two thirds of the Senate, and was authorized to appoint ʻʻjudges of the Supreme Court, and all other officers of the United States,ʼʼ subject to approval by a Senate majority. The provisions of Article II did not satisfy Gouverneur Morris’s plea that “the peopleʼʼ directly elect the president, but the sharing of powers with Congress muted Edmund Randolph’s fears of an executive “monarchy” that might impose a ʻʻtyrannyʼʼ on the country. In the end, the Framers of 1787 adopted yet another compromise that diluted the principles of democracy. But this compromise on presidential election and powers—like the Great Compromise on congressional structure and powers in Article I—allowed the Framers to submit to the states for ratification a constitution that established a strong national government.
Looking back from the perspective of more than two centuries, it seems astounding that delegates to the Philadelphia convention of 1787 spent so little time—and so few words—debating the structure and powers of the ʻʻnational judiciaryʼʼ that Madison first proposed in the Virginia Plan. Since its establishment by Article III of the Constitution, the Supreme Court has exercised “the judicial power of the United States” in thousands of cases that have decided whether state and federal laws conform to the Constitution, which is sanctified by Article VI as the ʻʻsupreme law of the land.” This awesome power—limited only by the equally awesome power of Congress and the states to amend the Constitution—appears at first glance to have been granted as an afterthought by the Philadelphia delegates.
On closer inspection, however, it seems clear that the delegates who drafted the final version of the Cunstitution’s judicial provisions were united in supporting a ʻʻnational judiciaryʼʼ with expansive powers over state and federal legislation. They arrived at this destination by varied routes, but the notion of “judicial review” of legislation was not foreign to them. Once the concept of an independent judiciary gained majority support, the delegates did not shrink from vesting the Supreme Court with the powers needed for its role as the dominant branch of the national government.
As we have seen, the vague outlines of the Virginia Plan provided for “one or more supreme tribunals” and for “inferior tribunals” with jurisdiction over ʻʻquestions which may involve the national peace and harmony.” Madison proposed that judges for these courts be chosen by the “national legislature,ʼʼ but the initial debate on this proposal showed that other delegates supported a selection by the “national executive.” Speaking on June 5, James Wilson of Pennsylvania “opposed the appointment of judges by the national legislature,” Madison reported. “Intrigue, partiality, and concealment were the necessary consequences” of allowing lawmakers to choose judges, Wilson argued. Born in Scotland and a signer of the Declaration of Independence, Wilson spoke now as a prosperous Philadelphia lawyer and member of the Confederation Congress. Although he supported popular election of federal officials, the savvy Scotsman recognized that politicians were tempted to reward their backers with such prizes as judicial office. Wilson won such a prize just two years later in 1789, when George Washington rewarded him with a Supreme Court seat for supporting ratification of the Constitution.
John Rutledge of South Carolina spoke for other delegates who supported appointment of judges by the legislative branch. He was “by no means disposed to grant so great a power to any single person,” Madison recorded. “The people will think we are leaning too much towards monarchy.” Although he differed with Wilson on this issue, Rutledge also won appointment from Washington to the Supreme Court, not once but twice. He served for one year, in 1790 and 1791, but resigned without hearing or deciding a single case; when Washington nominated him as Chief Justice in 1795, he was rejected by the Senate for political reasons. Benjamin Franklin, who attended the session to hear the debate on “a point of great moment,” as he put it, listened to Wilson and Rutledge and then spoke from his special seat. Expressing his hope that “other modes” of choosing judges would be proposed, Franklin delighted the delegates in his “entertaining manner” with a story—perhaps with glances at his friend James Wilson—of the “Scotch mode” of choosing judges. Lawyers made the choice in Scotland, Franklin said, and “always selected the ablest of the profession in order to get rid of him, and share his practice among themselves.”
Madison could not match Franklin in humor, but he took advantage of this opening to suggest that judicial appointments be made not by “any numerous body” such as the entire Congress or by a single executive but rather by the “Senatorial branch,” which he argued would be “sufficiently stable and independent to follow their deliberate judgment.” These remarks, of course, came well before the convention voted to give each state an equal vote in the Senate, a part of the Great Compromise that Madison opposed until its final passage. His motion to defer the question of judicial appointment to another day, to allow for “maturer reflection” by the delegates, passed by a vote of nine. states to two.
The question next arose on June 13, when Charles Pinckney of South Carolina and Roger Sherman of Connecticut jointly moved for appointment of judges by the “national legislature.” Madison restated his objections, arguing that candidates for judicial office “who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment.” Madison then moved for “appointment by the Senate” of federal judges. Overwhelmed at least for the moment—by Madison’s eloquence, Pinckney and Sherman promptly withdrew their motion. Sitting as the Committee of the Whole and hence not bound to any later decision, the delegates agreed to Madison’s proposal without dissent.
More than a month passed before the convention resumed its debate on judicial appointments. While his fellow delegates argued over the legislative and executive branches, Madison devoted some of his spare time to pondering this unresolved question. After listening on July 18 to half a dozen familiar speeches by advocates of legislative or executive appointment, Madison tried to break the impasse. He proposed that federal judges “be appointed by the executive with the concurrence of one-third at least” of the Senate. Madison argued that his proposal “would unite the advantage of responsibility in the executive with the security afforded in the second branch against any incautious or corrupt nomination by the executive.” After listening to half a dozen more speeches on the issue, Madison realized that his proposal had no chance of approval. Without a recorded vote, the delegates agreed “by common consent” to defer the question for later decision.
When the convention returned to his proposal on July 21, Madison eagerly seized on movement toward compromise on the election of Congress, in which supporters of popular election to the House would agre
e to give every state equal votes in the Senate. Urging that “the spirit of compromise which had prevailed” on this question should extend to judicial appointments, Madison suggested “a concurrence of two authorities, in one of which the people, in the other the states, should be represented.” On this issue, the convention rejected his plea for compromise, and Madison trimmed his sails. Professing that he was “not anxious” to allow a Senate minority to block a judicial nomination by the executive, Madison revised his motion “to let a majority reject.” On this day, Madison lost by a vote of six states to three.
Having failed to resolve this issue, Madison took a low profile and deferred his next move for more than seven weeks. During this time, the delegates adopted the Great Compromise that legitimated slavery and gave the smaller states equal votes in the Senate. Between July 21 and September 12, when the convention neared its end, not a single delegate rose to speak on the issue of judicial appointments. On August 6, however, the Committee on Detail, which had worked diligently for weeks to prepare a draft of the Constitution, based on the tentative votes of the Committee of the Whole, reported its efforts to the delegates. This draft included the language that became, with little change, the wording of Article III of the Constitution, establishing the Supreme Court and outlining its jurisdiction. On the issue that had most divided the delegates—whether members of the Supreme Court should be chosen by the president or the Senate—the committee placed this power in the Senate. Madison was a member of the Committee on Detail, but he obviously failed to persuade his fellow members that judicial appointments should be shared by the president and Senate.