Sunday, June 03, 2012

James Madison and the Federal Veto: Pinckney's Motion Defeated

 Charles Pinckney's June 8, 1787 motion to expand the federal veto to encompass "all laws which they [the Federal Legislature] shd. judge to be improper", discussed in my last post on the subject, immediately drew fire.  Hugh Williamson was first, declaring that he "was agst. giving a power that might restrain the States from regulating their internal police."  And at the end of the day Pierce Butler of South Carolina was "vehement agst." the suggestion.

Elbridge Gerry of Massachusetts articulated a more nuanced opposition.  In part, he seemed to relate his objection to the idea that the federal government was one of limited powers, and that there could be certain specified powers denied to the states.  A federal veto was acceptable, but only if it was limited to those specific areas, such as the emission of paper money, which should be "amg. the exclusive powers of Congress":
Mr. GERRY cd. not see the extent of such a power, and was agst. every power that was not necessary. He thought a remonstrance agst. unreasonable acts of the States wd. [restrain] them If it shd. not force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the confederation was depending before Congress, Massachussetts was then for inserting the power of emitting paper money amg. the exclusive powers of Congress.
And Roger Sherman of Connecticut seemed to pick up Gerry's suggestion.  He "thought the cases in which the negative ought to be exercised, might be defined" and suggested that the delegates defer the issue "till a trial at least shd. be made for that purpose."

James Wilson of Pennsylvania disputed these assertions.  The principle of a federal veto was "right."  Unless the states conceded their sovereignty they would be living like savages in a state of nature with each other.  "A definition of the cases in which the Negative should be exercised, is impracticable."  Wilson went on to deliver a speech that came close to advocating elimination of the states altogether:
Among the first sentiments expressed in the first Congs. one was that Virga. is no more, that Masts. is no [more], that Pa. is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Govts. formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?
John Dickinson of Delaware similarly saw a fundamental either/or choice.  One party or the other had to have controlling power, and he believed that the "Natl. Govt." should prevail:

Mr. DICKENSON deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the Natl. Govt. or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible.

Unfortunately for proponents of the motion, Wilson's (and Dickinson's?) comments threatened to enmesh the veto issue in the large states vs. small states issue, drawing a stinging rebuke from Delaware delegate Gunning Bedford:
Mr. BEDFORD. In answer to his colleague's question where wd. be the danger to the States from this power, would refer him to the smallness of his own State which may be injured at pleasure without redress. It was meant he found to strip the small States of their equal right of suffrage. In this case Delaware would have about 1/90 for its share in the General Councils, whilst Pa. & Va. would posses 1/3 of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle of representation. And after all, if a State does not obey the law of the new System, must not force be resorted to as the only ultimate remedy, in this as in any other system. It seems as if Pa. & Va. by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. Besides, How can it be thought that the proposed negative can be exercised? are the laws of the States to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberations of a body who may be incapable of Judging of them? Is the National Legislature too to sit continually in order to revise the laws of the States?
James Madison saw that the tide was turning against the amendment.  Seeking to retrieve the situation, he reiterated that some sort of veto power was essential, while suggesting that the details might require further attention.  At the same time, he again explicitly raised and unwisely praised the British precedent:
Mr. MADISON observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Natl. Govt. into each State so far as to give a temporary assent at least. This was the practice in Royal Colonies before the Revolution and would not have been inconvenient, if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly.
Seeking to counter the small-states concerns expressed by Bedford, Madison asked whether the small states would be better off with no central government at all:
[Madison] asked Mr.[Bedford] what would be the consequence to the small States of a dissolution of the Union wch. seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Genl. Govt. was withdrawn.
Madison's last-ditch effort failed to save the day.  Pinckney's amendment to expand the veto power was defeated.  Only three states, all of them large (Massachusetts, Pennsylvania and Virginia) voted in favor; seven states (Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina and Georgia) opposed; and one state (Delaware) was evenly divided.

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