July 21, 1787: Separation of Powers

Oliver Ellsworth by John Trumbull, 1792

Yale University Art Gallery, Trumbull Collection, https://artgallery.yale.edu/collections/objects/84

"I believe the older men grow the more uneasy [while away] from thier wives."

--Oliver Ellsworth (CT) to his wife Abigail

Saturday, July 21, 1787: The Convention Today

Wilson (PA) moved to join the Supreme Court with the national executive in vetoing Acts of Congress. This would enable the judiciary to overturn laws not just for being unconstitutional, but also for being ill-advised. Madison (VA) seconded the motion. The motion failed, 3–4–2, with Connecticut, Maryland, and Virginia in support; Massachusetts, the Carolinas, and Delaware opposed; Pennsylvania and Georgia divided; and New Jersey absent.

The Convention went on to consider a proposal like one they had deadlocked on, 4–4, three days earlier: having the national executive appoint judges and giving the second house of the legislature an opportunity to negative his choice.

Madison thought letting the second house have the sole power of appointments would create regional jealousy since there were more northern than southern states. Fellow Southerner Charles Pinckney (SC) disagreed, saying the legislature would be more trusted and knowledgeable in judicial appointments than the executive. Gerry made a similar argument.

Ellsworth (CT) wanted the legislature to make judicial appointments by itself, since he thought the national executive would be more corruptible than the legislature. G. Morris (PA) responded that it didn’t make sense to be so suspicious of a national executive whom the Convention had already entrusted with command of the army.

Randolph (VA) thought the worst method would be to give the legislature the sole power of appointing judges. Mason said it was his duty to disagree with his fellow Virginians on the subject.

After these arguments, the Convention agreed 6–3 to give the Senate the sole power of appointing judges, with only Massachusetts, Pennsylvania, and Virginia wanting the national executive to have a role in the process.

Synopsis

• A motion to have the judiciary participate in the veto process narrowly failed.
• The Convention decided to give the Senate the sole power of appointing federal judges.

Delegates Today

• Washington (VA) attended James Thomas' play Edward and Eleanora at the Southwark Theater.
• Hamilton (NY) attacked his governor, George Clinton, in an unsigned letter in the Daily Advertizer, saying he had “in public company, without reserve, reprobated the appointment of the Convention, and predicted a mischievous issue of that measure.” Hamilton refuted Clinton’s objections.
• Ellsworth (CT), in the letter to his wife quoted at top, described examining “the other day” an arm severed from an Egyptian mummy. “The flesh, which I tried with my knife, cuts and looks much like smoked beef kept till it grows hard.” He said this would be “a good story” to share with the President of Yale University.

Philadelphia Today

• Another hot day.